IATSE, Local 659

National Labor Relations Board - Board Decisions

Jun 30, 1972

197 N.L.R.B. 1187 (N.L.R.B. 1972)

IATSE, LOCAL 659 1187
International Photographers of the Motion Picture
Industries, Local 659 of the International Alliance
of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and
Canada (MPO-TV of California Inc., Y-A Pro-
ductions, Inc.) andJames N . Adler on behalf of Joel
Colman and Vilis M. Lapenieks and Association of
Motion Picture Producers , Inc., Party to the
Contract. Cases 31-CB-189 and 31-CB-198
June 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On June 18, 1971, Trial Examiner Allen Sinsheim-
er, Jr., issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and Respondent filed a reply
brief, cross-exceptions, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm only such of the
Trial Examiner's rulings, findings,' and conclusions
as are consistent herewith.
Respondent excepts to the Trial Examiner's finding
that the Regional Director did not exceed his
authority in setting aside certain settlement agree-
ments and issuing the consolidated complaint.
Respondent contends that the Regional Director
may not set aside the settlement agreements since
there has been no breach of the agreements or a
subsequent unfair labor practice.
It has long been the practice in the Board's
Regional Offices that before any complaint is issued
or other formal action taken the Regional Director
affords an opportunity to all parties for the submis-
sion and consideration of facts, arguments, offers of
settlement, or proposals of adjustment, except where
time, the nature of the proceeding, and the public
interest do not permit. Normally prehearing confer-
ences are held, the principal purpose of which is to
discuss and explore such submissions and proposals
of adjustment. The Regional Office provides Board-
prepared forms for such settlement agreements, as
well as printed notices for posting by the respondent.
These agreements, which are subject to the approval
of the Regional Director, provide for an appeal to
the General Counsel by a complainant who will not
join in a settlement or adjustment deemed adequate
by the Regional Director. Proof of compliance is
obtained by the Regional Director before the case is
closed. If the respondent fails to perform his
obligations under the informal agreement, the
Regional Director may determine to institute formal
proceedings.2
Pursuant to the above practice, settlement discus-
sions were held in the Regional Office in the instant
case, resulting in the execution by the parties, and
approval by the Regional Director, of two separate
but identical settlement agreements, both of which
provided that "the Union will make whole Joel
Colman and Vilis Lapenieks by payment to each of
them of backpay plus interest, such amounts to be
determined by the Regional Director in accordance
with existing Board formula." The Regional Director
determined that Colman was entitled to backpay
amounting to approximately $400. Colman contend-
ed that his backpay should be approximately
$40,000, and that the Regional Director's determina-
tion of the amount of the backpay would not
adequately remedy the alleged vioiation of the Act.
Colman's position was ultimately partially sustained,
and his backpay recomputed by the Regional
Director to the sum of $16,539.63. When Respondent
refused to pay such an amount, approval of both of
the settlement agreements was withdrawn.
It appears obvious from the foregoing that there
was no meeting of the minds when the settlement
agreements were executed. Colman expected to
receive a sum far in excess of $400. Respondent
expected a liability substantially less than $16,539.63,
the amount ultimately computed by the Regional
Director. And the Regional Director was apparently
faced with uncertainty as to the choice of a formula
for making his determination. In such circumstances,
we believe that it would be inequitable to hold the
parties to the commitments contained in the settle-
ment agreements, and we find that the Regional
Director did not commit reversible error in with-
drawing approval of the settlement agreements and
reopening the case for further proceedings. While
settlement agreements are entitled to be treated with
sanctity and should not be lightly set aside, we
recognize that circumstances can exist which warrant
permitting withdrawal from a settlement agreement.
Such is the case here.
' The General Counsel has excepted to certain credibility findings made enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and
by the Trial Examiner. It is the Board's established policy not to overrule a find no basis for reversing his findings.
Trial Examiner's resolutions with respect to credibility unless the clear ' National Labor Relations Board Rules and Regulations and State-
preponderance of all of the relevant evidence convinces us that the ments of Procedure. Series 8, as amended. Sec. 101.7.
resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544.
197 NLRB No. 134
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not view the factual situation here as falling
within the Board's principle that a Regional Director
may not set aside a settlement agreement and issue a
formal complaint unless the charged party has failed
to comply with its terms or committed further unfair
labor practices. As stated above, this is a case where
no agreement was reached rather than a case where
one was reached and further unfair labor practices
committed. And having concluded to proceed to a
complaint on the Colman charge, the Regional
Director did not abuse his discretion in likewise
litigating the issues raised in the Lapenieks charge.
The General Counsel excepts to the finding of the
Trial Examiner that the roster system, as interpreted
and applied by Respondent, does not violate the Act.
A review of the facts convinces us that there is merit
to this exception.
International Alliance of Theatrical Stage Employ-
ees and Moving Picture Machine Operators of the
United States and Canada (IATSE) has 22 branches
or local unions in Los Angeles County, representing
from 16,000 to 20,000 employees engaged in working
in the motion picture industry in the Hollywood,
California, area. Respondent is one such local union
and represents motion picture cameramen.
The chief party with whom IATSE bargains is the
Association of Motion Picture Producers, Inc. (the
Association), which currently represents approxi-
mately 70 employer-members. In addition to the
members of the Association, there are numerous
additional employers with whom IATSE bargains.
Prior to negotiations between IATSE and the
Association for a new agreement, IATSE notifies all
other employers with whom it has expiring collective-
bargaining agreements of the commencement of
negotiations. These employers are advised of their
option either to negotiate separately if they so notify
IATSE in writing by a certain date or to be bound by
the final understanding reached between IATSE and
the Association. As appears below, however, no
3 These differences result from the fact that some companies are
"collapsible" in that, when the time comes for an employee to receive
holiday or vacation pay, the company may no longer be in business.
4 Although all the aforementioned agreements contain lawful union-
security clauses , such clauses are not enforced ; indeed, membership is not
available until an employee has been on the Industry Experience Roster for
a period of 2 years.
5 The Association and Independent Basic Agreements each contain the
following provision: ". . . the Employer shall give preference of employ-
ment to persons . . . in the crafts and classifications of work subject to this
agreement . The definitive terms of such preference or seniority shall be
those contained in the industry experience seniority roster systems as, by
agreements, have been set up and maintained industry-wide between
Employers on the one hand and the International Alliance and/or the
respective West Coast Studio Locals on the other hand."
6 At times there have been many individuals who had met the work
requirements to be placed on the roster but whose names did not physically
appear on the Association's master copy. If an employee had the required
experience , Respondent would treat him as being on the roster . When an
employer failing to notify IATSE is treated as bound
if he chooses not to sign the new agreement.
At the conclusion of the negotiations, each member
of the Association signs a single agreement with
IATSE called the "Association Basic Agreement." A
second agreement , the "Independent Basic Agree-
ment," is then prepared and is identical to the
Association Basic in all essential respects, except for
a different method of computing vacation and
holiday pay.3 This agreement is printed and mailed
to all prior signatories who are nonmembers of the
Association. These employers, after receiving their
copy of the Independent Basic Agreement, individu-
ally decide whether or not to sign and be bound by
the agreement. Those employers who sign this
agreement are hereinafter referred to as "Independ-
ents."
Negotiations then continue between IATSE, Re-
spondent, and the Association and result in a third
agreement, hereinafter referred to as the "Local 659
Agreement." It is this agreement which provides for
the industry Experience Roster, discussed infra,
which gives rise to the basic issue in this case.4 The
Local 659 Agreement requires that preference in
employment be given to persons whose names
appear on this roster. The roster provisions are
incorporated by reference in the Association and
Independent Basic Agreements.
The roster, by agreement, is supposed to be
maintained by the Association. However, in practice,
employers, when they are in need of cameramen,
normally call Respondent, who keeps the roster and
list of available employees current.6
In determining whether an employee is eligible to
be placed on the roster, his work experience with
employers other than those who signed one of the
aforementioned agreements is not considered. Thus,
qualifying experience is generally limited to experi-
ence with employers having a collective-bargaining
agreement with Respondent and/or IATSE.7
There can be no doubt that the actions of
employer called . Respondent would read such an individual 's name along
with those names actually appearing on the roster, providing such persons
were currently seeking employment.
I The roster is divided into groups 1 . 2. and 3 . Initial placement on the
roster in group 3 requires that one have worked 30 days for one signatory or
a total of 90 days for several signatories. To move from group 3 to group I
requires generally that a person work 130 days for signatories . There is no
evidence that group 2 has any practical existence.
The Trial Examiner found that experience with an employer prior to the
employer becoming a signatory is counted for initial placement on the roster
in group 3 when that employer signs a contract with Respondent or IATSE.
The General Counsel excepts to this finding . According to Ben Batchelder,
administrative assistant to the executive vice president of the Association.
such experience is counted only for the purpose of reclassification of an
employee on the roster from group 3 to group I . In view of the fact that
Batchelder maintained the roster from its inception in 1949 until he retired
January I , 1971. we agree with the General Counsel that such experience is
counted only for the purpose of reclassification on the roster.
IATSE, LOCAL 659 1189
Respondent in applying the roster restrained and
coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act. In part, Section 7 gives
employees the right to bargain collectively through
representatives of their own choosing, or to refrain
therefrom, subject of course to majority rule.
Respondent's actions penalize employees for having
exercised their statutory right to refrain from
bargaining collectively through Respondent in the
past, while rewarding those employees who have
chosen to work in units represented by Respondent.8
Respondent contends that the roster provisions, as
interpreted and applied, are lawful because the
employers, both the Independents and members of
the Association, in effect, formed a multiemployer
bargaining unit for seniority purposes.
The Trial Examiner considered it unnecessary to
determine whether the employers involved constitute
a multiemployer unit. We find that they do not, for
the evidence shows that the Independent employers
did not in fact comprise a part of a single unit for
bargaining. Indeed, Respondent admits that the
Independents were always given the option to
negotiate separately if they desired. Furthermore, the
Independents can refuse to be bound by any
agreement negotiated by any multiemployer group,
simply by not signing the resulting contract. It is not
until the Independents have received the proposed
agreement and discussed it that each Independent
individually decides whether or not to become a
party to the agreement. In addition, the Association
has not been authorized to negotiate on behalf of any
Independent employer. Accordingly, we find that the
Independents are not part of a multiemployer unit.9
Respondent further contends, however, that even if
a multiemployer bargaining unit does not exist, there
is still no violation of the Act since the seniority
provisions are unrelated to union considerations and
merely protect the so-called "integrity of the bargain-
ing unit." We find this contention to be without
merit.
It is well settled that a bargaining representative for
the employees of a particular unit has the right to
make seniority depend on the date of hire in the unit
and thus to give an inferior seniority ranking to
employees transferred from another unit. General
Drivers and Helpers Local Union 229, Teamsters
(Associated, Transport, Inc.), 185 NLRB No. 84.10 We
have heretofore concluded that each Independent
employer comprised a separate bargaining unit. We
are not faced here with a situation where new
employees are being placed at the bottom of a unit
seniority list. On the contrary, this case presents a
situation wherein Respondent prevents an applicant
from obtaining initial employment unless he has had
prior employment at which he was represented by
the Union.
The question here is not what seniority rights an
employee acquires after working in a unit represent-
ed by Respondent, but what rights the applicant is to
start with when he seeks employment with an
employer who is party to a collective-bargaining
agreement with Respondent and/or IATSE. Respon-
dent admits that if an employee had acquired
seniority rights under a collective-bargaining con-
tract to which Respondent and/or IATSE is a party,
those rights will be honored where the employee
seeks employment in an entirely separate unit which
is also represented by Respondent. On the other
hand, an employee cannot commence work in a unit
represented by Respondent unless he has previously
worked in a unit covered by a collective-bargaining
contract to which Respondent and/or IATSE is a
party. Since the existence of a collective-bargaining
contract connotes representation by a labor organi-
zation , the deprivation of employment with employ-
ers who are parties to collective-bargaining contracts
with Respondent and/or IATSE flows from the
failure of an employee to have been previously
represented by Respondent.
The facts relating to the Charging Parties clearly
reveal how Respondent's application of the roster
violates the Act."
Both Colman and Lapenieks hold the classification
of director of photography. When employers MPO-
TV and Y-A, who were not members of the
Association, sought permission from Respondent to
employ these individuals, such permission was
refused by Herbert Aller, Respondent's business
representative, on the ground that neither individual
had acquired the necessary experience to be placed
on the roster. In fact, both individuals had extensive
experience, albeit it was gained while working for
employers who did not have contracts with Respon-
dent and/or IATSE.
With respect to Lapenieks, in July 1966 director
e See Teamsters ' Freight Local No. 480 (Hilton D. Wall), 167 NLRB 920,
enfd . 409 F.2d 610 (C.A. 6); Whiting Milk Corporation, 145 NLRB 1035,
enforcement denied 342 F.2d 8 (C.A. 1). Although enforcement was denied
in Whiting, we believe the rationale in Hilton D . Wall to be correct, and we
respectfully disagree with the court 's rationale in Whiting.
9 Rock Springs Retail Merchants Association , 188 NLRB No. 41; The
Kroger Co., 148 NLRB 569; Van Eerden Company, etc., 154 NLRB 496. See
also Moveable Partitions , Inc., 175 NLRB 915, holding that intent to become
part of a multiemployer unit cannot be based solely on the adoption by an
employer of a contract negotiated by a multiemployer association of which
the employer was not a member; there must also be evidence that the
employer has authorized the association to negotiate on its behalf.
10 See also Schick v. N.L.R.B., 409 F .2d 395 (C.A. 7); Ford Motor
Company v. Huffman, 345 U.S. 330.
11 The employee status of both Colman and Lapenieks is discussed infra.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alex Grasshoff told George Flaherty, vice president
of IATSE, that Y-A Productions, Inc., was doing a
feature documentary, that he desired to sign an
IATSE contract, but that he wanted to use Lapenieks
as director of photography. Flaherty checked with
Alter, who insisted that if Y-A signed a contract,
Lapenieks could not be hired since he was not
eligible for roster status.
On June 8, 1966, Gordon Stulberg of Columbia
Studios, the financial backer of Y-A, wrote Alter and
explained the nature of the proposed project and
Columbia's financial interest and said that Columbia
had informed Y-A that, due to Columbia's obliga-
tions under the IATSE agreement,12 it would finance
Y-A's film only if produced under IATSE condi-
tions. Stulberg further explained that Grasshoff
considered the teamwork between him and Lapen-
ieks to be essential to the success of the film and that
one of the prime reasons Columbia was willing to
finance the picture was a previous documentary done
by Grasshoff with Lapenieks. In an exchange of
letters, Alter remained adamant in his position that
Respondent would not agree to Lapenieks' employ-
ment.
Grasshoff finally agreed that Y-A would sign an
IATSE basic agreement and also agreed to use a
director of photography other than Lapenieks. Alter
gave Grasshoff a list of directors of photography,
from which Grasshoff could choose whomever he
desired. Grasshoff decided to use Richard Moore.13
Moore later informed Grasshoff that he would not
be available until August 18, 1966. Feeling that the
production should start as scheduled on August 8,
Grasshoff tried unsuccessfully to find another
director of photography. He then requested that
Alter permit Lapenieks to work until Moore was
available. Alter agreed but insisted that Moore must
replace Lapenieks immediately upon becoming
available14 and that Lapenieks not be given any
photographic screen credit.15 On August 22, the first
day he was available for employment, Moore
replaced Lapenieks as director of photography.
Melvin Dellar of MPO-TV of California, an
Independent, in August 1966 sought permission from
Respondent to hire Colman as a director of photog-
raphy for a 2-day assignment on August 4 and 5.
Alter refused, since Colman was not on the roster,
and said further that if MPO used Colman all IATSE
people would be pulled off the stage. Colman was
not hired for this assignment.
Dellar had been authorized by Arnold Kaiser,
president of MPO, to negotiate a contract with
Colman for his services as director of photography
for MPO. Dellar and Colman reached agreement on
a 3-year contract which included a salary of $750 per
week, subject to approval by Respondent.
On August 11, 1966, Dellar notified Respondent by
letter that he desired to sign the aforementioned
contract with Colman and requested that Colman be
allowed to become a member of Respondent for this
purpose. After receiving no response, Dellar again
wrote Respondent concerning this matter. On Sep-
tember 15, Respondent replied that, since Colman's
name did not appear on the roster, he could not be
hired by MPO.
The above illustrates that initial employment in a
unit represented by Respondent is based strictly on
union considerations. No matter what qualifications
an employee brings with him, if he has not in the past
been represented by Respondent, he cannot gain
employment with any employer who is party to a
collective-bargaining agreement with Respondent
and/or IATSE. Accordingly, we conclude that
Respondent, by applying the seniority provisions
against any Association or Independent employer as
if all such employers comprise a single bargaining
unit, and in particular by the manner in which
Respondent has applied the roster provisions with
respect to Colman and Lapenieks, has unlawfully
restrained and coerced employees in the exercise of
their statutory rights and thereby violated Section
8(b)(1)(A) of the Act.16
The Trial Examiner found Colman and Lapenieks
to be supervisors. We disagree.
The record reveals no evidence that Lapenieks ever
recommended the employment or discharge of any
employee or possessed any other substantive indicia
of supervisory status. As for Colman, the record
shows that on one occasion he recommended that the
production manager discharge an employee. But this
recommendation was not adopted. Six months later,
Colman again requested that this same employee be
discharged. This employee was eventually dis-
charged, but the record indicates the discharge was
based on an independtrnt investigation by the
production manager. The record also shows that
Colman, with respect to one employer, was able to
IZ Columbia Studios is an employer-member of the Association.
13 It is worth noting that Moore, although a member of the Union. did
not physically appear on the roster. However, Respondent had determined
that Moore was eligible to be placed on the roster and treated him
accordingly. See In . 6, supra.
14 It is interesting to note that Paragraph 68 (b) of the "Local 659
Agreement" provides, in part, "In the event that there are insufficient
available qualified persons . . . who are in Industry Groups 1, 2 or 3 to
meet the employment requirements of the Producer . . . then Producer may
secure employees from any source."
15 One's reputation in the industry goes up or down according to one's
credits on the screen.
16 In view of our finding , we deem it unnecessary to consider the effects
of the "Tri-Local Agreement" or the "Permit System" discussed by the Trial
Examiner.
IATSE, LOCAL 659
recommend employment when a vacancy occurred
on his particular crew. But his recommendations
were not automatically followed. When they were
followed, the final decision was based on the
independent judgment of someone above Colman,
usually the principal director or the production
manager.
We cannot infer from the above that Colman and
Lapenieks, as directors of photography, could effec-
tively recommend employment and discharge. It
appears that the actual authority was lodged in, and
the decisions were effectuated by, others. Recom-
mendations by the director of photography are
subject to independent investigations and decision by
others.
The Trial Examiner also found that directors of
photography responsibly direct the camera and
electrical crews. We believe that such direction is
only routine since the evidence indicates that the
principal director, from whom the director of
photography receives all his instructions, is always
present to supervise the crews. Under these circum-
stances, and in the absence of evidence of any real
supervisory authority, we conclude that Colman and
Lapenieks are employees under the Act.17
Moreover, even if Colman and Lapenieks were
supervisors, we would still find the action directed
against them by Respondent to be unlawful because
of its impact on employees. The record shows that
"Daily Variety," a publication distributed principally
to employees in the motion picture industry in Los
Angeles County, contained articles relating to Res-
pondent's refusal to permit the hiring of Colman and
Lapenieks. Furthermore, the action taken against
Colman and Lapenieks was brought to the attention
of union members who were admittedly employees
and who were on the Union's executive board when
the action was discussed. In addition, the charges in
this case were read to members at regular meetings.
It can reasonably be concluded that the discrimina-
tion thus directed by Respondent Union created an
impact on other employees, the natural consequence
of which was to restrain and coerce them with
respect to their Section 7 rights, in violation of
Section 8(b)(1)(A) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it is
found necessary that Respondent cease and desist
from the unfair labor practices found and from any
other invasions of the employees' Section 7 rights;
11 In view of our finding , we agree with the Trial Examiner that there is
no merit in Respondent 's contention that Colman is an independent
contractor.
's In the event that this Order is enforced by a Judgment of a United
1191 '
take certain affirmative action, including making
whole Joel Colman, and Vilis Lapenieks with back-
pay computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716; and post appropriate
notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
International Photographers of the Motion Picture
Industries, Local 659 of the International Alliance of
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Applying its collective-bargaining contracts
with the Association of Motion Picture Producers,
Inc., its member-employers, or nonmember-employ-
ers outside the Association in any manner which
discriminates against any employee with respect to
his initial employment and/or placement on the
Industry Experience Roster on the basis of union
representation.
(b) In any like or related manner , discriminating
against employees because of experience gained in
the industry while not represented by Respondent.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Notify all employers, against whom it applies
the Industry Experience Roster seniority provisions,
that it will cease applying such provisions in a
manner that discriminates against any employee with
respect to his initial employment and/or placement
on the Industry Experience Roster on the basis of
union representation.
(b) Make whole Joel Colman and Vilis Lapenieks
for any loss of pay they may have suffered by reason
of Respondent's interpretation and application of the
seniority provisions of the Industry Experience
Roster, such loss of earnings to be computed in the
manner set forth in the section entitled "The
Remedy."
(c) Post at Respondent's business offices and
meeting places copies of the attached notice marked
"Appendix." 1R Copies of said notice, on forms
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided by the Regional Director for Region 31,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Promptly after receipt of copies of the said
notice from the Regional Director, return to him
signed copies for posting by MPO-TV of California,
Inc., Y-A Productions, Inc., all employer-members of
the Association of Motion Picture Producers. Inc.,
and all other employers against whom Respondent
has applied the seniority provisions of the Industry
Experience Roster, if they be willing, at their places
of business, including all places where notices to
employees are customarily posted.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
CHAIRMAN MILLER, dissenting:
About 4 years ago this case was settled. The
settlement agreements were signed by Respondent
and Charging Parties and were approved by the
Regional Director. The agreements provided for
backpay, with the amount to be determined by the
Regional Director. He determined the amount to be
$400, as to Charging Party Colman. A few days
thereafter, Colman asked permission to withdraw
from the agreement. For what reason we do not
know, the Regional Director permitted him to do so,
although Respondent asserts, without contradiction,
that it was willing at all times to comply with the
agreement.19
In my view the agreement should have been
honored and, that being true, the complaint should
be dismissed and the settlement agreement reinstat-
ed.
We have held in a line of cases going back over the
decades and continuing through the years that a
Regional Director may not set aside a settlement
agreement and issue a formal complaint unless the
charged party has failed to comply with its terms or
committed further unfair labor practices. See, for
example, Corn Products Mfg. Co., 49 NLRB 1377
(1943); Teamsters General Local No. 200.,172NLRB,
19 A majority of my colleagues find that there was "no meeting of the
minds when the settlement agreements were executed." I cannot agree. All
parties agreed in writing that the amount of backpay was "to be determined
by the Regional Director in accordance with existing Board formula." That,
No. 1190%8); Mohasco Industries, Inc., 172 NLRB
No. 237 (1968); Arrow Specialities, Inc., 177 NLRB
306, 308 (1969).
If a Regional Director may not set aside such an
agreement in the absence of lack of compliance or
the commission of further unfair labor practices, I
see no reason why he may achieve the same result by
permitting a charging party to withdraw from the
agreement under like circumstances.
We have a very real interest in settling charges,
since if it were not for the fact that over 90 percent of
such charges are disposed of by settlement and other
early methods of disposition at the regional level, this
Board would be inundated by such a caseload that
we would be totally paralyzed. Considerations of
equity also require that a respondent which has in
good faith bound itself to a course of complying with
such an agreement should be entitled to rely on
compliance therewith by the other party or parties,
and not be subject to their whim or caprice in
deciding to withdraw after a definitive agreement has
once been executed. Indeed, if it becomes known
that a party cannot rely on such agreements and if
instead they are mere will o' the wisps doomed to
disappear at the whim of the other contracting party,
how can we expect respondents seriously to consider
entering upon settlement discussions?
For these reasons , I would dismiss the complaint
and reinstate the settlement agreement.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and we intend
to carry out the order of the Board and abide by the
following:
WE WILL NOT apply our collective-bargaining
agreements with the Association of Motion
Picture Producers, Inc., its employer-members, or
nonmember-employers outside the Association in
in my view, was a binding agreement , and cannot be vitiated merely
because one party subjectively "expected more" than an amount deter-
mined by the method to which he had agreed.
IATSE, LOCAL 659
any manner which discriminates against any
employee with respect to his initial employment
and/or placement on the Industry Experience
Roster on the basis of union representation.
WE WILL NOT in any other manner restrain or
coerce you in the exercise of the rights guaranteed
in the National Labor Relations Act, which are as
follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection and
To refrain from any and all of these
things.
WE WILL make whole Joel Colman and Vilis
Lapenieks, with interest, for any loss of pay they
may have suffered.
INTERNATIONAL
PHOTOGRAPHERS OF THE
MOTION PICTURE
INDUSTRIES, LOCAL 659
OF THE INTERNATIONAL
ALLIANCE OF
THEATRICAL STAGE
EMPLOYEES AND MOVING
PICTURE MACHINE
OPERATORS OF THE
UNITED STATES AND
CANADA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
The order consolidating cases, the consolidated complaint, and notice
of hearing issued on September 8, 1970. The original charge in Case
31-CB-198 involving Vilis M. Lapenieks was filed January 30, 1967, and
the charge in Case 3I-CB-189 involving Joel Colman was filed December
20, 1966. Par. 12 of the complaint was amended at the hearing to add
certain specified additional dates therein.
Y Respondent's motion to dismiss the entire case was predicated on the
fact that a settlement agreement had been entered into involving Colman
and that Respondent had at all times been willing to comply therewith.
Briefly, the issue raised results from the execution on June 10, 1968, of
separate but identical informal settlement agreements in the Colman and
Lapenieks cases . On July 11, 1968, Attorney Adler, on behalf of Colman,
signed the agreement in Case 31-CB-189 and on October 4, 1968,
Lapenieks signed the agreement in Case 31-CB-198. On November 22,
1193
Board's Office, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7352.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding
was heard before me in Los Angeles, California, on
January 27 to 29 and February 1 to 5, 1971, upon a
consolidated complaint of the General Counsel and answer
of International Photographers of the Motion Picture
Industries, Local 659 of the International Alliance of
Theatrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, herein called
Respondent.' The consolidated complaint alleges a viola-
tion of Section 8(b)(I)(A) of the, Act by virtue of the
interpretation and application of certain "roster provi-
sions" set forth therein and a "tri-local agreement"
described therein, which allegedly "have established and
given effect to an arrangement, understanding or practice
which gives employment preference to individuals based
on their having worked for employers signatory to
contracts with Respondent and/or IATSE and on their
being members of Respondent and/or IATSE." It further
alleges specific violations of Section 8(b)(1)(A) by Respon-
dent causing an employer, MPO-TV of California, Inc., to
refuse to hire Colman on or about August 6, 1966, and by
Respondent causing an employer to refuse to hire
Lapenieks.
Respondent filed both a motion to dismiss predicated on
a certain settlement agreement or agreements and an
answer. Attorney Gross on behalf of the Charging Party
Lapenieks filed a motion to dismiss as to Lapenieks at the
hearing, also predicated on a certain settlement agreement
or agreements, which motion was denied. These will be
considered hereafter together with the issues raised by the
pleadings and during the course of the hearing, which will
be specified under the heading " Issues."
Respondent's motion to dismiss made at the hearing with
respect to the settlement agreements was denied at the
hearing. It was renewed near the close of the hearing.
Ruling thereon was reserved and is disposed of below.2
Motions were also made with respect to the application of
Section 10(b) of the Act and to strike certain testimony.
Ruling was reserved thereon. All motions to strike
1968, the Lapenieks and Colman agreements were approved by the
Regional Director. Both agreements provide, among other things. that "the
Union will make whole Joel Colman and Vilis Lapenieks by payment to
each of them of backpay plus interest, such amounts to be determined by
the Regional Director in accordance with existing Board formula." By letter
dated July 14, 1969, the Regional Director notified Adler that he had
determined that Colman was entitled to backpay for only 2 days in the
amount of $400 and that this had been made after thorough investigation of
Adler's contention that the amount of backpay should be approximately
$40,000. On July 18, 1969, in view of the great discrepancy between
Colman's backpay claim and the Regional Director's determination, the
Charging Party's request (of July 15) for permission to withdraw from the
settlement agreement in the Colman case was granted. On August 20, 1969.
the Charging Party appealed from the refusal to issue complaint in the
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony on which ruling was reserved are hereby denied.
With respect to the application of Section 10(b) of the Act,
evidence antedating 6 months of the filing of charges
herein will be considered in accordance with the principles
enunciated by the Supreme Court in Bryan Mfg. Co., 362
U.S. 411, as subsequently interpreted by the Board.3
Upon the entire record , including consideration of the
briefs filed by the General Counsel on behalf of the
Charging Party Colman and the Respondent , and upon my
observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. BUSINESS OF AFFECTED EMPLOYERS
MPO-TV of California, Inc., herein called MPO, is a
Colman case claiming that the determination of the backpay due Colman
did not remedy the alleged violation. On December 2, 1969, the appeal was
denied by the General Counsel's office. On May 28, 1970, upon the
Charging Party's motion for reconsideration, a determination was made
that the settlement agreement did not adequately remedy the alleged
violations of the Act and the appeal was sustained as to the 8(b)(1)(A)
allegation. On June 22, 1970, the Regional Director informed Respondent
that the amount of backpay due Colman was $16.539.63. Respondent
refused to pay the backpay in said amount. Following this refusal, on
September 4, 1970. approval of both of the Colman and Lapenieks
agreements was withdrawn by the Acting Regional Director and tie case
was reopened for further proceedings.
Respondent contends that it had posted the notices required, was
prepared to comply with the settlement, and offered to pay the sum of $400
originally found due by the Regional Director. Respondent states that
under established law that the only basis for going behind the settlement
agreement would be either that it had not been complied with or that there
was a subsequent violation thereof, Respondent's contention herein is that it
was in compliance with the-settlement agreement it entered into. However,
the issue posed here differs from the cases cited in that the Respondent did
not pay the amount finally set forth by the Regional Director after he
allowed the Charging Party to withdraw from the settlement agreement.
Respondent raises two principal contentions: First, that the Regional
Director exceeded his authority in permitting the Charging Party to
withdraw from the Colman agreement: and, second, that the parties agreed
that the Regional Director should determine the amount of backpay, that he
had determined the backpay was $400, and that Respondent was willing to
make Colman whole in the amount of $400. As the General Counsel points
out, there is nothing in the Board's Rules and Regulations which prohibits
the Regional Director from permitting the Charging Party to withdraw from
the Colman settlement. The last part of Sec. 101.7 of the Board's Rules
relating to settlement provides:
The Regional Office provides Board prepared forms for such
settlement agreements as well as printed notices for posting by the
Respondent. These agreements which are subject to approval of the
Regional Director provide for an appeal to the General Counsel, as
described in Section 101.6 by a compainant who will not join in a
settlement or adjustment deemed adequate by the Regional Director.
Proof of compliance is obtained by the Regional Director before the
case is closed. If the Respondent fails to perform his obligations under
the informal agreement, the Regional Director may determine to
institute formal proceedings. [Emphasis supplied.]
From the foregoing, it is evident that one requisite is the approval by the
Regional Director of the settlement agreement. It is also evident that he is
acting as a representative of the General Counsel in so doing. The
settlement agreement itself provides that he is to determine the amount of
backpay in accordance with Board formula which presumably refers to
F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co..
138 NLRB 716. Respondent's contention, in essence, is if all parties have
signed the agreement and the Regional Director is designated to make the
backpay determination. and if he makes a determination, that disposes of
the matter. In the instant case. the Regional Director made the determina-
tion, the Charging Party informed him that it did not agree with the
determination, and he then allowed the Charging Party to withdraw from
the settlement agreement. Had the Charging Party not signed the settlement
wholy owned subsidiary of MPO Videotronics, with its
principal place of business in Los Angeles, where it is
engaged in filming television commercials. MPO annually
receives revenue in excess of $50,000 from firms located
outside California for filming television commercials for
transmission outside California.
Wilding, Inc., herein called Wilding, is a movie produc-
ing company with offices and studios in Los Angeles,
California, Chicago, Illinois, and other cities. During the
preceding year in the course and conduct of its business in
California, Wilding sold and shipped goods in excess of
$50,000 to customers outside California.
Y-A Productions, Inc., herein called Y-A, is a corpora-
tion formed solely for producing a motion picture called
"Young Americans" under a contract with Columbia
Pictures Corporation, herein called Columbia, whereby
agreement and contended that the amount was in error, there is no question
that it would have had a right of appeal to the Board . Similarly, had the
Charging Party not signed the settlement agreement and had the Regional
Director, after investigating the backpay issue , determined there was a
question of fact and that he could not determine the backpay amount, the
Regional Director could have set aside the settlement agreement and issued
a complaint.
Assuming all parties signed a settlement agreement and no one raised
any question, but the Regional Director determined that the amount of
backpay could not be resolved by him on the facts presented, what would
his position then be? Presumably he could set aside the settlement
agreement and proceed to issue a complaint or seek further settlement effort
or, with the accord of the parties, hold a backpay hearing, but in any case,
he would be exercising his judgment as a representative of the General
Counsel. If the Regional Director were to find the amount of backpay to be
a very large amount and a Respondent refused to pay, what action could a
Regional Director take? Under the rules set forth above, one action that
could be taken would be to issue a complaint against a Respondent. In fact,
if a Respondent doesn't pay under the Board procedures where there is at;
informal settlement , this is the action that ordinarily would he taken. Were
the settlement to provide for a Board Order or a court decree, of course, a
different procedure might be followed. What the foregoing illustrates in my
judgment is that, when an informal settlement is involved, the matter
remains under the aegis of the General Counsel and his representative, the
Regional Director. The informal settlement is a procedural document used
by the Board. It is not a contract as such, not does the Regional Director
function as an arbitrator. The Board's consent election proceedings may
give the Regional Director a posture more in the nature of an arbiter, but
not the informal settlement agreement since the Respondent is not hound
by his findings unless the agreement is finally executed and fulfilled. Were
the settlement agreement viewed as a contract, since a Respondent is not
bound. there would be a lack of mutuality until complete performance by a
Respondent. Further, under contract law today, under the Uniform
Commercial Code generally, a contract that would be unconscionable
would not be enforceable. Whether or not such would be the case here
could depend upon what the amount of backpay might ultimately be
ascertained to be. I conclude from the foregoing and also as the General
Counsel has pointed out that inherent in the Regional Dircetor's authority to
approve a settlement is the power io reconsider such. See and compare Swift
Service Stores, 169 NLRB 359 at 361. See also Jackson Tile. 282 F.2d 90 at
92 (C. A. 5).
With respect to the contention of Lapenieks at the hearing that his case
was separate from that of Colman, it may be that, had separate forms been
executed, such would have been true. However, the forms that were
executed referred to both Colman and Lapenieks and therefore the setting
aside of the Colman settlement necessarily involved the setting aside of the
Lapenieks settlement. Respondent contends that the General Counsel, in a
previous case involving Torbin Johnke, had determined that the roster
system was not invalid as applied therein. Even assuming that were the case,
such would not preclude the General Counsel from acting herein . Further.
the General Counsel's complaint does not attack the roster system per se but
as it has been interpreted and applied. I therefore reaffirm my rulings
denying Respondent 's aforesaid motion to dismiss the complaint and also
Lapenieks' aforesaid motion.
3 See for example Houston Maritime Assn., Inc, 168 NLRB 616.
IATSE, LOCAL 659
Columbia agreed to distribute the film nationally and
finance the $450,000 cost of production.
Columbia, a corporation with studios located in Los
Angeles, California, is engaged primarily in the production
and distribution of motion pictures. Columbia annually
sells and ships from its California studios motion picture
film and other products valued in excess of $50,000 directly
to the points outside of California.
The parties stipulated that, for the purposes of the
commerce allegations only, the foregoing facts were true. I
accordingly find that MPO, Wilding, Y-A, and Columbia
are now, and at all times material have been, employers
engaged in commerce and in business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that International Photographers of the
Motion Picture Industries, Local 659 of the International
Alliance of the Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada, herein called Respondent, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Complaint
The complaint, as previously set forth, alleges violations
of Section 8(b)(1)(A) by the Respondent. The following
paragraphs of the complaint are set forth in haec verba:
6. At all times material herein, Respondent and/or its
parent body, International Alliance of Theatrical Stage
Employees and Moving Picture Operators of the
United States and Canada, herein called IATSE, and
employer-members of the Association of Motion
Picture Producers, Inc., herein called AMPP, and
various independent motion picture industry employers
in Los Angeles County, California, including MPO,
Wilding, Y-A, and Gerald Schnitzer Productions,
herein called Schnitzer, have been parties to separate,
but identical, collective-bargaining agreements. cover-
ing single employer units 4
7. At all times material herein, the collective-bargain-
ing agreements described in paragraph 6 above have
contained or incorporated by reference inter alia, the
following provisions, herein called the roster provi-
sions:
68. Seniority
a) Maintenance of Industry Experience Roster
Producer has established and will maintain an
industry Experience Roster of those persons
covered by this agreement who in the period
between January 1, 1947, and January 31, 1965,
both inclusive, have actually worked thirty (30)
1195
days or more in one or more of the job
classifications covered by this agreement in the
production of motion pictures in the Motion
Picture Industry in Los Angeles County, or who
have been hired in said County and have
performed such services outside said County.
Additional persons may hereafter be added to
such roster in accordance with the procedure set
forth under Industry Group 3 below.
n
Industry Group 3 of said Industry Experience
Roster shall be composed of all persons on such
Roster on January 31, 1965 in Industry Group 3.
Commencing on and after February 1, 1965,
persons not on said Roster who after January 31,
1965 perform all such services in the job classifi-
cations covered by this agreement for a total
thereafter of at least ninety (90) actual workdays
collectively, with more than one Producer en-
gaged in the production of motion pictures in the
Motion Picture Industry in Los Angeles County
(under a collective-bargaining agreement contain-
ing the same seniority provisions as those con-
tained herein) or thirty (30) or more actual
workdays with Producer, shall have his work
record reviewed by the Producer's "Industry Camer-
amen Qualifications Committee, " appointed by the
Association of Motion Picture and Television
Producers, Inc. Upon such a review, if such
Committee finds that any such person possesses
sufficient skill and ability to meet the employment
requirement of the Industry, the name of such person
may be placed by Producer in Group 3 of said
Industry Experience Roster. If such person does not
in the opinion of said Committee have the required
skill and ability, he shall not be added to the same
Roster and such reviewed employment shall not be
recognized as experience in the Motion Picture
Industry for any purpose under the terms of this
agreement. [Emphasis supplied].
b) Hiring, Layoff and Rehire The Producer shall
give preference of employment within each of the
following applicable related job classifications
grouping, respectively, as hereafter provided: 1.
Director of Photography and/or 1st or 2nd
Cameraman. 2. Portrait Photographer and Still
Cameraman 3. 1st and 2nd Assistant Camera-
man. 4 . Color Technician. 5. Film Loader. Such
preference of employment in hiring and rehiring
4 Respondent contends that the unit is a multiemployer unit There is no
dispute that there have been bargaining agreements
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be given by Producer within each such
respective related job classification grouping to
the available qualified persons who are from such
related job classifications, in the following order:
First, preference of employment shall be given to
such available qualified persons who are in Industry
Group 1, second, preference of employment shall be
given to such available qualified persons who are in
Group Industry 2; then, next preference of employ-
ment shall be given to such available qualified
persons who are in Industry Group 3. In the event
that there are insufficient available qualified
persons from such respective related job classifi-
cations who are in Industry Groups 1, 2 or 3 to
meet the employment requirements of the Pro-
d ucer in such respective relatedjob classifications,
then Producer may secure employees from any
source-5 [Emphasis supplied.]
8. At all times material herein, Respondent has
maintained an agreement with IATSE Local 644
located in New York, New York and IATSE
Local 666 located in Chicago, Illinois, herein
called the Tri-Local Agreement, which contains
the following provisions:
1. REPORTING OF CREWS: Where a Local
desires to have its members work in the territory
of a sister Local, notification shall be given in
writing by the Union and the members entering
the territory of the sister Local shall notify the
Local Union upon arriving in the territory.
2. FEATURE PRODUCTION: When two-
thirds (2/3) of a production is made in any one of
the territories of Local 644, 659 and 666, the crew
shall be employed entirely from the Local in
whose territory two-thirds (2/3) of the production
is to be photographed. (2/3 of a production or
less shall be determined by the number of days in
the shooting schedule).
3. Where less than 2/3 of a production is made
in any one territory of Locals 644, 659 or 666, the
Local entering the territory shall be permitted to
enter with a First Cameraman,6 Second Camera-
man, Assistant Cameraman and a Still Camera-
man, and photograph in collaboration with a First
Cameraman, Second Cameraman, Assistant
Cameraman and Still Cameraman from the Local
in whose territory they are working. [Emphasis
supplied.] Such colloboration must be confined to
the city in which the unit is working. (A
collaborating crew shall not be confused with a
second unit.) The collaborating crew shall work
under the immediate direction of the Director of
Photography who has entered the territory of the
collaborating crew. Screen credit shall be given to
the Director of Photography in charge of the
collaborating crew.'
9. At all times material herein, Respondent and
the Employers described above in paragraph 6,
have interpreted and applied the Roster Provi-
sions so as to place on said Roster only those
persons who had worked for employers who have
collective-bargaining agreements with Respon-
dent and/or IATSE and in accordance with this
interpretation, the only workdays counted for the
purpose of qualifying for placement on the said
Roster are those worked for Employers who are
party to such collective-bargaining agreements.
10. Respondent, at all times material, with the
acquiescence of the Employers described in
paragraph 6 above, has interpreted and given
effect to the Tri-Local Agreement so as to permit
members of IATSE Local Unions 644 and 666 to
work in Los Angeles County as cameramen or
directors of photography without regard to the
Roster Provisions.
11. On or about August 1, 1966, Respondent,
through Aller,8 caused MPO to refuse to hire Joel
Colman, herein called Colman, for the reason
that Colman was not a member of Respondent.
12. On or about August 6, 1966, Respondent
through Aller caused or attempted to cause Y-A
to refuse to hire Vilis Lapenieks because he was
not a member of Respondent.
15. By virtue of their interpretation and applica-
tion of the Roster Provisions and the Tri-Local
Agreement as described in paragraphs 9 through
14 above, the Respondent and the Employers
described in paragraph 6 above, have established
and given effect to an arrangement, understand-
ing or practice which gives employment prefer-
ence to individuals based on their having worked
for employers signatory to contracts with Res-
pondent and/or IATSE and on their being
members of Respondent and/or IATSE. [Empha-
sis supplied.]
16. The Respondent because of the arrange-
ment , understanding and practice described in
paragraph 15 above, through Aller, on or about
August 1, 1966, caused MPO to refuse to hire
Colman and on or about August 6, 1966, caused
Y-A to refuse to hire Lapenieks and by engaging
in this conduct did restrain and coerce employees
in the exercise of rights guaranteed in Section 7 of
the Act.
5 These provisions are set forth in Local 659's agreement which was r These provisions are set forth in a copy of the Tn-Local Agreement
received in evidence received in evidence
6 "First Cameraman" and "Director of Photography" are synonymous " Respondent's business agent
or equivalent terms
IATSE, LOCAL 659 1197
* * * * * 4. The General Counsel further contends that in
28. By the acts and conduct in paragraphs 9
through 12, 15 and 16 above and by each of said
acts Respondent did restrain and coerce and is
restraining and coercing, employees in the exer-
cise of rights guaranteed in Section 7 of the Act
and thereby did engage in and is engaging in
unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.
In addition to the foregoing, paragraph IX of the
"Standard Basic Agreement"-either between the Associa-
tion of Motion Picture and Television Producers (herein
called "Association") or the Independent Picture Industry
Contract (herein called "Independent") and I.A.T.S.E
-provides:
With respect to employees hired by the Employer to
perform services in the County of Los Angeles,
California, or hired by the Employer in the County of
Los Angeles to perform services outside said county,
the Employer shall give preference of employment to
persons having experience in the motion picture
industry in said Los Angeles County, in the crafts and
classifications of work subject to this agreement. The
definitive term of such preference or seniority shall be
those contained in the industry experience seniority
roster systems as, by agreements, have been set up and
maintained industrywide between Employers on the
one hand and the International Alliance and/or the
respective West Coast Studio Locals on the other hand.
In the negotiation and maintenance of such definitive
terms, the parties consider, among other things, the
length of service of such persons in the motion picture
industry in the respective crafts or classifications of
work, described in Articles III and IV-hereof, and/or as
employees of the Employer.
The Respondent admits that the roster system was
applied so as to consider only time worked as an employee
for signatories to one of these basic agreements which will
be discussed more fully hereafter.
B. The Issues
1. Respondent admits that the roster system requires
that the necessary time worked to qualify must have been
as an employee for a signatory to a basic agreement.
Respondent contends that the agreements covered a
multiemployer unit and accordingly that such require-
ments were valid seniority provisions.
2. Respondent further contends that whether or not
there were a multiemployer bargaining unit such (roster)
employment preference system was a valid and legal hiring
arrangement.
3. The General Counsel contends that there was no
multiemployer unit and that an employment system
granting preference on the basis of work for signatories
was necessarily illegal and violated Section 8(b)(1)(A) of
the Act.
particular instances union membership was a requisite for
employment. The General Counsel relies on evidence
relating to a permit system, to the employment of Colman,
to the employment of Lapenieks, to the employment of
Dambacher, and to the Tri-City Agreement.
5. With respect to Lapenieks and Colman, there are
several questions. First, Respondent contends that both
performed supervisory work and that Colman in addition
was an independent contractor and therefore not covered
by the Act. Second is the question, assuming that
Lapenieks and Colman were supervisors, whether the Act
would be applicable under the theory advanced by the
General Counsel. Third, what were the facts and circum-
stances with respect to their obtaining or not obtaining
employment or a contractual arrangement.
6. With respect to the permit system there may be
involved a question as to the application of Section 10(b) to
some of the evidence adduced and a further question is
whether or not the record reflects any illegal action or
conduct. The same questions arise with respect to Dam-
bacher.
7. The Tri-City Agreement is offered by the General
Counsel to establish that members from other cities had
preference in employment. Here again there is a question
as to just what the agreement involves and how it was
applied.
Respondent objected to certain testimony as to Dam-
bacher under Section 10(b), and as to certain testimony
relating to the permit system under Section 10(b). Respon-
dent also contests the position of the General Counsel as to
the application of the Tri-City Agreement. Respondent
further contends, as set forth, that Colman and Lapenieks
were supervisors and in any event that there was nothing
improper with respect to their employment or nonemploy-
ment.
C. The Collective- Bargaining Relationship and the
Roster System
The bargaining relationship and the roster system are set
forth together so that the issues as to these can be analyzed
and then considered further in the light of the other
matters referred to.
IATSE has 22 affiliated local unions in Los Angeles
County representing about 16,000 employees engaged in
work in the motion picture industry in that area. Local 659,
one of its local unions, represents motion picture camera-
men. The chief employer association is the Association of
Motion Picture and Television Producers, Inc. In 1949 it
had seven members. As a result of other employers joining
or mergers, in 1964 it had 20 members, and at the time of
the hearing about 67 members. In addition to the members
of the Association, there are from 200 to 500 additional
employers with whom the IATSE has agreements.
Before negotiations have commenced for a new agree-
ment, IATSE has notified in writing all employers with
whom it has had agreements of the commencement of the
negotiations. Following is set forth a letter of October 23,
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964 (which is the same as one of October 14, 1960, except
for dates specified):
Gentlemen:
Enclosed herewith is a copy of the "General
Proposals" of the I.A.T.S.E. Locals and Basic Crafts as
presented to the Association of Motion Picture and
Television Producers, Inc. and other producer associa-
tions in the Hollywood area.
I am calling your attention to the I.A.T.S.E.
Standard Basic Agreement, of which you are a signator,
wherein it provides for notice of renegotiations for
wages, hours, working conditions, and etc. as of
November 1, 1964. Even though you are operating
under the terms of the "Standard Agreements" existing
between local unions, the-International and members
of the Association of Motion Picture and Television
Producers, Inc., or members of other motion picture
industry associations, you may be interested in what is
being proposed.
Matters peculiar to the individual local unions will
be negotiated also. If you are interested in these
proposals, they will be made available to you, and
arrangements made for negotiations, if you so advise.
Negotiations are expected to get under way with the
Association of Motion Picture and Television Produc-
ers, Inc. some time during the early part of November,
with the object in view of consummating the agree-
ments with members of the Association on or before
January 31, 1965.
If for any reason you should care to negotiate
separately before the consummation of agreements
between the International Alliance, its locals and the
Association of Motion Picture and Television Produc-
ers, Inc., consider these as direct proposals to you and
inform this office by letter on or before November 2,
1964; otherwise, the final results of the agreements
when reached between the I.A.T.S.E. Unions and the
Association of Motion Picture and Television Produc-
ers, Inc. will be immediately forwarded to you and will
become effective as of February 1, 1965.
Sincerely yours,
Zeal F;aibanik!s,
interna:tionall
Rep.relsentVatilve
According to IATSE Vice President Flaherty, whose
testimony in uncontradicted, except for one employer who
"went broke," to his knowledge dating from 1954 no
individual employer or group of employers has elected to
seek separate negotiations. Accordingly, only one negotia-
tion or negotiations have been conducted, as in 1965 when
there were representatives of the Association present as
well as representatives of an independent association
representing 22 to 24 employers and certain nonaffiliated
employers. Flaherty further testified:
Q. (By Mrs. Robbins) In negotiations with the
Association of Motion Picture and Television Produc-
ers, did the Association ever represent to I.A. in these
negotiations, 1965 and any later ones, that it had
authority to bind anyone other than its members?
A. No, I don't believe it ever has represented as
such.
Q. All right.
A. They refer to other people it's an open door if
they want to come in but they never have said they had
them bound. We say so but not them.
At the conclusion of negotiations, IATSE signs a "Basic
agreement," the one with the members of the Association,
being called the "Association Basic," which is mimeo-
graphed. For convenience the agreement is also printed
and mailed out to all the nonmembers of the Association
for signature. This printed agreement is called the
"Independent Basic ." The Association Basic and Inde-
pendent Basic are identical in almost all respects except for
a different method of computing vacation and holiday
pay .9 The reason for the latter is that many of the
independent companies are "collapsible" and may not be
in existence when time for holiday or vacation arrives.
Flaherty testified on examination by the General Counsel:
Q. (By Mrs. Robbins) As I understand it, in
preparing the provisions of this General Counsel's 3,
which is the Standard Basic Agreement for Independ-
ents , IATSE did not actually negotiate this with any
employer but subsequently, after it was printed up on
an individual producer basis, the employer decided
whether he wanted to be bound by it or not.
A. That's right.
Q. Is that right?
A. He has two copies and he takes one to his
attorney and his attorney says it's okay or it's not and
they come back, then. If there is anything in there that
is not agreeable that we might be able to change, we
will work with them but so far, no one has ever found
fault with that document.
Then on examination by Respondent, Flaherty stated:
Q. At what point and where are these contracts
called the Independent Basic negotiated?
A. As I tried to explain before, they are a copy of
the Standard-they are negotiated at the. regular
negotiations for the major Basic and then for the few
spots that are different, our office, Mr. Bernay,
normally, at this time, Mr. Chamie and the Producers
Association sets down and makes this up so that it will
be-That's where they're actually made.
Q. Any changes are actually made with the
Association?
A. With the Association. That prevails in anything
that goes on in this industry. But as I said before, this
is-each individual who wants this must come up and
9 The Association agreement also provides for an extra week's vacation
after 10 years, which is not in the Independent agreement.
IATSE, LOCAL 659 1199
take it and come back and give their answer whether
they accept it or don't.'°
Article I of the Independent Basic provides:
Either party may be written notice to the other, served
on or before November 1, 1968 request negotiation of
the `Wage Scales, Hours of Employment and Working
Conditions' as set forth in Article IV hereof; and the
preferential hiring or seniority clauses of any agree-
ment in effect between the Employer and the Interna-
tional Alliance and any West Coast Studio Local of the
International Alliance as set forth above . . . or of any
other provision of any contract which may be applica-
ble to the Employer by reason of it being effective
between such West Coast Studio Locals of the
International Alliance and members of the Association
of Motion Picture and Television Producers, Inc.,
Society of Independent Producers, Inc., or members of
any Independent Producers Association or Animated
Film Producers Association as set forth in Article IV of
this agreement . . . If such notice is served the parties
agree to commence negotiations within thirty (30) days
after such notice is so served concerning the proposals
or recommendations set forth therein and continue
such negotiations diligently and in good faith otherwise
any agreements entered into by the International its
local unions and the Association of Motion Picture and
Television Producers, Inc., and/or Employer Associa-
tions shall become effective and binding on the
Employer in lieu of such negotiations . . . The
negotiators representing each party in such negotia-
tions shall have power to execute the agreement
reached as a result of such negotiations.
It is understood and agreed that if the employer is
operating under the terms of the Standard Agreements
existing between any local union, the International
Alliance and members of the Association of Motion
Picture and Television Producers, Inc., Society of
Independent Producers, Inc., Animated Film Produc-
ers Association and members of any Independent
Producers Association, any changes negotiated in such
Standard Agreements by the Alliance and its local
unions and the Producer Associations shall be effective
and apply to the Employer in the same manner as it is
effective and applied to the members of these Associa-
tions.
Whether or not an employer is a member of the
Association, of an independent association or a member of
no association, there is one central health and welfare fund
for active employees, one central health and welfare fund
for retired employees, and one pension plan all provided
for under the Basic Agreement. In addition, the Basic
Agreement provides for a contract services, administration
trust fund, which is administered by the Association and to
10 Carl Stewart , former manager and General Counsel of the Commer-
cial Film Producers Association , testified that some members thereof
complained they had not been represented in negotiations for the 1965
contract and were dissatisfied because of no representation and/or
nonparticipation. Stewart said several members did not sign the Independ-
ent Basic until 1967. At that time, IATSE agreed to recognize the
Commercial Film Producers Association and negotiate concerning their
situation . Stewart said that IATSE later attempted to rescind this
recognition agreement , but a Commercial Supplement Agreement was
reached in 1969. This latter is specifically referred to on p. 3 of the
which employers pay a specified amount for each hour
worked by an employee in the unit. Whether or not an
employer is a member of the Association, the monies are
administered by the Association for the benefit of all those
who sign a Basic Agreement and the employees of such
employers and used for establishing and maintaining
training programs, safety procedures and the experience
roster systems.
The industry experience roster system came into being
on August 10, 1949. Article IX of the Basic Agreement set
forth before in the complaint is admitted to be correct as
set forth and it spells out the provisions therein as in effect
for January 31, 1965. Essentially it sets forth classifications
in three seniority groups. The top group, I, must first be
exhausted in a particular classification by an employer
before he can hire anyone from group II and similarly he
must exhaust any employees in the classification of group
II before he can hire from group III. If the available
employees in groups I, II, or III are exhausted the
employer can hire from any source he desires. An
individual moves from group III to group I after having
worked 130 days while in group III. There is no priority
within a group. To obtain roster status an employee must
be employed by an employer who is signatory to the Basic
Agreement and perform services under that agreement for
at least 30 days for a single employer or a total of 90
workdays collectively for more than one signatory employ-
er. Employees who achieve roster status have the time
credited to them for work performed with a signatory
employer for periods prior to the time the employer
became a signatory.
The physical roster is maintained by the Association for
all signatories to the agreement , regardless. of whether or
not the employer is a member of the Association. Since
1964 it has tabulated its records by an IBM card system.
Ben Batchelder, the administrative assistant to the execu-
tive vice president of the Association, maintained the
rosters from their inception in 1949 until he retired January
1, 1971. According to Batchelder, "When the employee has
completed such services the burden of proving such
services is on the employee. He is required to obtain a
written statement from his employer or employers as the
case may be, certifying that he has satisfactorily completed
the required number of days of employment," 30 for a
single employer and 90 for a group of employers. Until
August 1966 if Batchelder was satisfied with such proof of
employment, the employee's name would be entered on the
industry experience roster in group III. In August 1966, the
qualifications committee for cameramen, appointed by the
Association, started functioning, with its first meeting in
August and its next in December 1966. After the
committee commenced functioning fully, an employee was
required to complete an application form recording his
Independent Basic of 1969 and incorporated thereto by reference.
Stewart also testified that "... it was agreed that at the 1970
negotiations , we could be present and maybe participate but that we would
be present as watchers , observers and that we could then participate in the
committees but I remember frequently in the negotiations that some
member would complain bitterly about the 1965 contract because we had
not been represented and had not participated in the framing or the drawing
of that Agreement but if you pin me down as to time, date and place, I
simply cannot do it."
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personal employment record and to appear before the
committee for an interview. If the committee was satisfied
that the employee had performed the required services, he
would be placed on the roster. (Commencing sometime in
1967 there was also a requirement that he pass a physical
examination.)
Batchelder testified that from the time the qualifications
committee commenced functioning in August 1966 until
November 1970, 324 cameramen were placed on the roster
and only 3 were rejected for physical reasons, I for being
overweight and the other 2 for color blindness. Eventually
these three were also placed on the roster. Batchelder also
testified without contradiction " that in 1966, during a busy
period in the industry, there were many people who had met
the work requirements, but whose names did not physically
appear on the roster. The Association was behind in placing
people on the roster because of the adoption of its
qualifications committee. Doyle Nave, the assistant busi-
ness representative and presently business representative of
Respondent, testified that there were employees who had
worked for years in the industry who had satisfied the
roster requirements but had never physically been placed
on the roster, in some instances because the man had not
bothered to go down and have his name placed on the
roster and in others because of the bottleneck existing in
the Association offices.
Because of this and in order to treat everyone fairly,
according to Nave, if a man had the required amount of
time and had submitted proof through his employer to the
Union utilizing substantially the same standards that
Batchelder had used, the Union treated the people as
having roster status, as if their names physically appeared
on the roster. According to Nave, whose testimony I am
crediting herein (unless otherwise indicated),12 this was
irrespective of whether the man was a member or not or
whether he had paid a permit fee or any monies to the
Union. Nave testified that membership in the Union had
nothing to do with physical placement on the roster. Nave
further said that during the years 1965 to 1966 when the
Local had from 1,150 to 1,200 members, approximately
"225 people at that time had qualified on the roster as
roster status people who in time became members." 13 In
April 1966, the Union wrote those whose records indicated
they had worked a required amount of time to be placed
on the industry experience roster, advising them to contact
Batchelder concerning physical placement on the roster.
And, on July 19, 1966, the Union submitted to Batchelder
a list of approximately 175 persons who it considered had
acquired roster status but who had not been placed
physically upon the roster. Batchelder, however, would not
act unless the individual came in personally and made
application and then the individual had to wait for the
Qualifications Committee Meeting in order to be placed
physically on the roster.
According to Nave, if an individual had roster status,
irrespective if he was a member of the Union or paid a
permit 14 to the Union, he had all the rights and privileges
of the roster system.
The Union maintained a list of available persons, but,
according to Nave's credited testimony,15 it was not
required that a man be a member or have a permit to get
on the availability lists nor did the lists show a man was a
member or permit holder or neither. According to Nave,
the Union maintained a file on each individual which
reflected his work record. An individual would call in
indicating his availability or leave word on an electronic
answering device. The Union maintained availability lists
by classification and grouping. When an employer called
in to find out who was available, the Union would read the
available list for the group and classification, sometimes
from the top and sometimes from bottom to give everyone
,.an equal chance of reading their names off."
According to Batchelder, an employer was not required
to call the Union if he knew the individual was available
and he could select and hire anyone from the particular
group he wanted. According to Nave, employment was
effected by the employers who could and did hire persons
directly and if the groups were exhausted, the employer
could hire from any source.
The foregoing indicates that the physical roster was
maintained by the employer association and only it could
place a man on the physical roster. It also reflects that as a
practical matter an employer, unless he hired a man whom
he knew was in group I (or could so determine from the
Association), would, in order to be sure of the situation,
have to call the Union who maintained the only availabili-
ty list as to who was working and who was not working.
The Union also, as set forth, maintains on its availability
list not only those who were physically on the roster at the
Association office but those persons whom it considered to
have achieved or acquired such roster status. According to
Nave, the Union based its so placing of these latter persons
on its knowledge of their work for an employer or
employers obtained from the employers. Nave testified:
"Under the terms of our contract, if they had worked thirty
or ninety days, as the case may be, we didn't want to
discriminate against these people." Nave also testified that
there were eight or nine persons who were not members
and did not obtain a work permit (during the time permits
were in use) who worked anyway-naming specifically
Emmett Dambacher.
Nave further testified that during busy periods there
were some employees who had not worked the required
days to secure roster status but who had worked for
signatories to the agreement and whose names had been
submitted by various employers. The Union in connection
with its files on individuals, which it kept so that it could
determine when and whether an individual had the
required number of days to be placed on the roster, made a
file on these people. In 1966 the number did not exceed 10
or 12. These names did not appear on the roster nor were
they said to be on the roster. However, if the roster was
11 This was corroborated by Doyle Nave, infra. 14 The permit issue will be discussed hereafter.
12 See discussion infra. 1' f have also noted certain testimony of Emmett Dambacher discussed
13 At the same time NABET , the only other union in Los Angeles
County with agreements covering cameramen , had only 12 to 15 members
in such classifications.
post and also considered testimony of Vilis Lapenieks, Alex Grasshoff, Joel
Colman, and Melvin Dellar, insofar as such may be related thereto.
IATSE, LOCAL 659 1201
exhausted and an employer asked if the Union knew of
anyone, the employer would be given the name of such an
individual and would also be told that he did not have
roster status. At this point, the employer could hire from
any source he wanted. None of such individuals on the
latter list were members nor did they hold permits in or
from the Union.16
Qualifications of employees were determined by the
employers and the matter of promotion from one classifi-
cation to another normally determined by the employer. In
the event of disagreements concerning the required time to
acquire roster status or to be moved into a higher group the
Union could complain to the employer and the matter be
treated as a grievance. The roster system as set forth
applied only to those employers who had signed a
collective-bargaining agreement with the Union containing
identical "seniority" or preference provisions and only as
to the employees covered under the particular contract.
D. Contentions as to Multiemployer Unit
Before considering the contentions with respect to effect
and application of the so-called permit system which was
in effect until March 25, 1967, I will discuss the
contentions of the Respondent and the General Counsel 17
as to the type of employer or multiemployer relationship
and also as to the validity of the roster system as set forth
to this point. The Respondent contends that there is a
multiemployer unit and the roster provisions accordingly
are valid seniority qualifications and provisions. The
General Counsel contends that there is no multiemployer
unit involved in the operation of the roster system and that
such basis as a predicate for the roster "seniority" or
preference provisions is accordingly invalid.
The Respondent contends that, even assuming there is
not a multiemployer unit, the roster provisions are a proper
method and system of hiring or employment under the
circumstances herein. The General Counsel contends
otherwise.
In support of her contention that there is a multiemploy-
er unit herein, the General Counsel cited Gordon Electric
Company, 123 NLRB 862. Therein about 160 of 960
signatories were members of an association or an employer
group. The nonmembers signed statements in which they
authorized the employer group to act "as my collective-
bargaining agent with IBEW Local Union No. 11 and
hereby agree to be bound by the terms and provisions of
any amendments to this agreement agreed to by IBEW
Local Union No. II and the N.E.C.A. bargaining
representative unless written notice of revocation of
authorization in writing is given to the N.E.C.A. and the
Union at least 120 days prior to the expiration date of this
agreement."
The Board therein held that it was not persuaded that the
16 As will be noted again, the collective-bargaining agreement contains a
union shop agreement which coincides with the Roster requirements. In
other words an individual, according to the agreement , must become a
member after working 30 days for a particular employer or 90 days for a
group of employers signatory to the contract, but not before. In fact, he
does not become a member until later, as will be set forth post.
17 The Charging Party's position is similar to the General Counsel's with
certain additional contentions relating to prior agreements and their effect,
and to certain contentions relative to the meaning of "seniority," which I
evidence established that the employer by signing the area
agreement and the authorization form "thereby indicated
an equivocal intent to be bound in collective bargaining by
a group rather than individual action." The Board found
"under the particular fact and circumstances of the case,
Gordon's conduct amounted at most, to the adoption of an
area contract which is insufficient to make an employer
part of a multiemployer unit ." The General Counsel also
points out that to find a multiemployer bargaining unit the
Board requires that the employers have expressly or by
implication indicated their intention to be bound in
collective bargaining by group rather than individual
action, citing Rock Springs Retail Merchants Association,
188 NLRB No. 41 (citing cases), and Moveable Partitions,
Inc., 175 NLRB 915.
The Respondent contends that it has established there is
a multiemployer bargaining unit. Respondent asserts that
such intention of the employers is manifested by their
entering into the Basic Agreement and continuing to
accept the negotiations conducted by the Association and
the Union. Respondent also contends, based on Flaherty's
testimony, supra, that the various employers could partici-
pate if they so desired. Respondent cites a number of cases
some of which involve a history of bargaining and
substantial reliance by the Board on this bargaining history
and the resultant multiemployer contracts.18
The General Counsel claims that there is herein merely
adoption of an area contract and no manifested intent to
be bound by collective group action. Respondent argues
that the signatory employers have been told that they could
either refrain from the overall unit bargaining and bargain
separately or join in the physical negotiations or be bound
by results of the one negotiation. Respondent asserts that
the contract provides for an employer being bound by
group action unless it indicates otherwise.
With respect to the General Counsel's reliance on Gordon
Electric, I note that the Board shortly thereafter explained
Gordon Electric as in essence limited to its facts and
discussed the issue of the intent of the employer in Marble
Polishers, Machine Operators and Helpers Local No. 121
AFL-CIO, 132 NLRB 845. In that case the Board said:
In Gordon Electric, supra, the Board concluded that the
mere fact that an employer signs an area agreement
previously negotiated by an employer association, is
not sufficient to establish an unequivocal intent to be
bound by group rather than individual action. Gordon
Electric involved one proposition only a determination
of what constitutes evidence of unequivocal intent to
be bound in collective bargaining by group rather than
by individual action.
Analysis of the cases does not provide a square precedent
for the situation here involved. However, I do not consider
that it is necessary to determine the matter of whether or
believe are disposed of by decisions of the U.S. Supreme Court referred to
hereinafter.
tR International Longshoremens and Warehousemen Union (Ward's Co.
Packing), 160 NLRB 232, and Midas Muffler Clinic, 162 NLRB 775. For the
proposition that a formal authorization to negotiate or be bound is not
necessary Respondent cites among others N.L.R.B. v. Bagel Bakers Council,
434 F.2d 884 (C.A. 2. 1970), 434 F .2d 884 (aff. in part 174 NLRB 622) and
N.L.R. B. v. Dover Tavern Owners Association, 412 F.2d 725 (C.A. 3) affg. 169
NLRB 28.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not the bargaining herein was or was not multiemployer as
the issues, in my opinion, can be resolved on another
basis. 19
E. Legality of the Roster System
The General Counsel claims that the system as admitted
by the Respondent , apart from other evidence to be
considered hereafter , is illegal in that it gives preference to
employees represented by a union as against employees not
represented by a union . The General Counsel also
contends , in addition , that union membership is a
consideration in employment . The Respondent's position is
that the roster hiring system , as set forth , is legal . It denies
that union membership is a condition for employment.20
The General Counsel relies primarily on a line of cases
involving merger (or consolidation) situations such as
N.L.R.B . v. Whiting Milk Corporation, 145 NLRB 1035,
enforcement denied 342 F.2d 8 (C.A. 1, 1965). The Board
declined to acquiesce in the opinion of the Court of
Appeals and followed its decision in Whiting Milk, supra,
in Woodlawn Farm Dairy, 162 NLRB 48 at pp . 49, 50 and
also in Teamsters ' Freight Local No. 480 (Hilton D. Wall),
167 NLRB 920, enfd , 409 F .2d 610 (C.A. 6).21
In these cases discrimination against employees not
represented by a union in establishing a new or merged
seniority list was held to be illegal . Respondent cites the
Court of Appeals decision in the Whiting Milk case , supra,
which was contra to the Board on the grounds that
seniority was a bargainable matter. Respondent also cites
Simon Levy Ltd. and Local 572 Teamsters , 181 NLRB 124
where the placing of employees who had been represented
by one union , at the bottom of the seniority list, when a
plant was acquired, then closed , and operations consolidat-
ed with those of the acquiring employer whose employees
were represented by a second and different union, was held
not to be illegal . Credit for seniority purposes was allowed
only for the time worked for the acquiring employer whose
employees were represented by the second union . Whatev-
er may be the effect of these cases there is no doubt that
seniority does not have to be limited to the relative length
of employment of respective employees nor based on any
precise standard . See Ford Motor Company v. Huffman, 345
U.S. 330 and Humphrey v. Moore, 375 U .S. 335 at 349.
However, the Respondent relies on a different line of
cases in support of the validity of its hiring system. This
line of cases deals primarily with hiring halls and /or hiring
arrangements , but would appear to be pertinent to the
arrangement herein with respect to the order in which
persons may be employed . In essence the system here
provides first for a seniority preference roster for persons
having worked a certain amount of time for a signatory or
19 In view of this I am not considering the effect, if any, of the
Commercial Supplement or any effect of a union authorization election in
1949 on the issue of multiemployer bargaining.
20 At this juncture there is being considered the roster system as it is set
forth in the contract. There is also, as will appear hereafter, a difference
between the General Counsel (and Charging Party) and Respondent as to
the use of the terms "roster" and "roster status" . The General Counsel
appears to limit these to the physical roster kept by the Association, while
Respondent contends the terms cover all persons who have actually met the
work requirements and are entitled to be placed on the physical roster.
21 The General Counsel also refers to N.L.R.B. v. IAM Aeronautical
signatories. When the "roster" is exhausted the system then
allows the employment of anyone regardless of whom they
may have worked for and regardless of union membership as
will appear more fully hereafter.
It should be noted as has been stated and will appear
again infra that there is no requirement of union member-
ship nor was there any requirement of union membership
nor any established utilization of the permit system when
in effect, prior to the time at which an employee achieved
the necessary time to be placed either physically on the
roster or was treated as having roster status by the Union.
In fact membership was not granted until later and
although a permit was utilized for certain purposes, to be
detailed, it was not mandatory nor required of a person
seeking to be placed on the Union's availability list. Under
such circumstances the Board has long held valid hiring
arrangements predicated on worktime for specified em-
ployers where limited to a particular area. These appear to
recognize the employment problem created by a situation
where employees are not customarily and ordinarily
employed continuously by the employer but rather must
work on a particular job or project and may work at
different times for various employers. In such case some
orderly system, which affords both some protection to
those working and usually living in the area, and some
basis of experience appears to be justified. Numerous cases
refer to the "area" as constituting a valid basis.
In Bricklayers, Masons and Plasterers International Union
of America et at, 134 NLRB 751, the Board affirmed the
Trial Examiner who stated:
In his brief General Counsel analyzes the testimony
to demonstrate that the criterion for job preference
which Furber indicated was membership in the
Respondent. However, in doing so General Counsel
equates the terms "Erie men" and "local men" with the
term "members of Local 28." While it is true that the
record discloses that all "Erie men" or "local men"
were, in fact, "members of Local 28," nevertheless it
does not disclose that Furber, in asking for preference,
used the latter term. Osborne and Floryan testified that
Furber did not use such a term nor did they understand
him to be asking for a preference for the Local 28
members, as such.
In order to accept General Counsel's position it is
necessary to conclude that Furber intended by his
statement to Floryan and Osborne to obtain a
preference based on membership in Respondent, rather
than on residence in the area. True, the criterion of
residence in the area could only be met by members of
Respondent, but I am not satisfied that the coincidence, of
itself, would render such a conclusion appropriate.
[Emphasis supplied.]
Industrial District, 123 NLRB 627 enfd. in certain respects 279 F.2d 761
(C.A. 9), which involves a different situation from that here since the
collective-bargaining agreement provided that employees of a production
unit represented by the IAM who transferred to other unrepresented units
would retain seniority in the production unit as of the date of hire but
employees of the production unit transferred to (other) union-represented
units would have seniority only from date of their return to the production
units and that such would discourage employees from seeking new union
representation upon transfer to other units in violation of the Act. Neither
do I consider Wallace Corp., 323 U.S. 248, 255-256 (1944), referred to by the
General Counsel to be determinative of the issues herein.
IATSE, LOCAL 659 1203
The Respondent concedes that it caused the dis-
charge of the two Aliens and Smith, but contends that
the reason therefor was not their lack of membership in
Respondent but their lack of residence in the area and
that its conduct based on such motivation was not in
violation of the Act. Absent any finding of pretext or
sham, I am of the opinion that preferential hiring or job
retention based upon an objective criterion such as area
residence, particularly in the construction industry,
would not be a violation of the Act. [Emphasis
supplied.]
The Supreme Court, in Local 357, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Los Angeles-Seattle Motor
Express) v. N.L.R.B., 365 "U.S. 667, indicates that
discrimination in employment, as such, by employer or
union is not outlawed, but that the validity depends on
the "true purpose" or "real motive." In the absence of a
finding herein that the motive of Respondent was to
seek job preference for its members, I do not believe it
appropriate to find a violation of the Act, even though
Respondent's conduct resulted in a benefit to its
members.
I note the Trial Examiner referred "particularly to the
construction industry" which was there involved. However,
I consider his reasoning and the decision equally applica-
ble to other industries having many employees who do not
work continuously for one employer.
In International Marine Terminals, Inc., et al., 137 NLRB
588, a Board panel stated:
The Respondents are parties to a collective-bargain-
ing agreement which provides for the exclusive hiring
of longshoremen through "the Union." The term "the
Union," according to the contract, refers to the
International Longshoremen's Association, AFL-CIO,
and Local 928, International Longshoremen's Associa-
tion, AFL-CIO. The contract provides for hiring
preference in the following order [Emphasis supplied.]
and in the precise terms set forth below:
Group 1. Employees with at least 4 or more years in
the longshore-trade in the area who have passed a
journeyman's examination, and have been employed at
least one year out of the last 4 years under a contract
between their then employer and the Union. [Emphasis
supplied.]
Group 2. Employees with at least 4 years in the
longshore-trade in the area, and who have passed a
journeyman's examination. [Emphasis supplied.]
Group 3. Employees with at least 2 years experience
in the longshore-trade in the area, who have passed a
journeyman's examination and who has [sic ] has been
employed at least 6 months in the last 3 years under a
contract between his employer and the Union. [Empha-
sis supplied.]
Group 4. Employees with at least 1 year experience
in the longshore-trade in the area and who have passed
a journeyman's examination. [Emphasis supplied.]
Group 5. All other applicants.
In practice, the Respondent Union established two
lists of employees for referral purposes, based on
questionnaires distributed to job applicants attending a
shapeup. These lists were composed of:
(1) Men with 4 or more years' experience on the
waterfront; and
(2) Men with less than 4 years' experience on the
waterfront.
In New York Times case,' the Board held that
somewhat similar contractual provisions were not
unlawful. For the reasons stated in that case, Chairman
McCulloch and Member Fanning are of the opinion
that the contract criteria for job referral based on past
work experience under a union contract are not in the
instant case unlawful. Thus the hiring criteria herein, as
in the New York Times case, also relate to an
appropriate consideration in the selection of employees,
namely, experience in the area obtained while working for
members of the employer-association involved. Moreover,
there is no evidence in the instant case that the required
work experience necessarily was obtained under contracts
containing union -security clauses. If it had been demon-
strated that the experience in question necessarily had
been obtained under contracts containing such clauses,
there would be a basis for finding in the present case
discriminatory preference for union members. [Emphasis
supplied.]
New York Mailers' Union. Local 6 International Typographical
Union, AFL-CIO (New York Times Company, and Publishers' Asso-
ciation of New York City, 133 NLRB 1052.
First, I note this case does not include the construction
industry. Second, the dicta set forth as to experience
obtained under union-security contracts will be considered
further hereafter.
In Local Union No. 337, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, 147 NLRB 929 at
930, the Board said:
As we have held, [citing cases] the Act does not
prohibit a union from trying to ease the impact of local
employment by excluding workers holding outside
jobs, or by attempting to cause employers to limit work
opportunities to strictly local applicants.
Another case involving area employment is International
Union of Operating Engineers, Local No. 98, AFL-CIO, 155
NLRB 850 at 852, where Trial Examiner Ruckel stated:
To accept the General Counsel's contention it is
necessary to conclude that Mullen intended his
statement to Liggett to obtain a preference based on
membership in Respondent rather than on residence in
the area. While it is doubtless true that the requirement of
residence in the area could only be met by members of
Respondent, and while Mullen may have used the terms
"my local" and "my area" interchangeably, I am not
convinced that membership was the factor in his mind. His
reference to "Bosten men" working on the Greenfield
project while men in his local were out of work, and his
corresponding reference to men from Greenfield area
(or Local 98) having been bumped off jobs in the
"Boston area," persuade me that what motivated Mullen
in requesting and obtaining Bavosi 's replacement was
the fact that he was not from the Greenfield area and that
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his nonmembership in Respondent was only incidental.
The Act and the Board 's decisions permit a preference in
hiring members of a labor organization where the
preference is based on a geographical area. [Citing cases.]
[Emphasis supplied.]
A recent case particularly apropos is J-M Company, Inc.,
173 NLRB 1461 , where the Board affirmed Trial Examiner
Foley who found a hiring arrangement analogous to that
herein to be a valid one . Trial Examiner Foley stated:
I find from this evidence that Parker and Pate were
discriminated against on January 22 , 1968, by being
denied recall on that date by Respondent Union, and
by being replaced on that date by two men referred by
Respondent Union and hired by Respondent Compa-
ny. There now remains for disposition the vital question
of whether the evidence shows they were discriminated
against because of non -membership in the Union and not
because they lacked area residence and work experience
with contractors signatory or parties to the Contract. If
the discrimination was for the latter reason, there is no
violation. (Citing Local 357 Teamsters v. N.LR. B., 365
U.S. 667 .) [Emphasis supplied.]
The legality of the exclusive - hiring hall operated by
Respondent Union is not in issue. However, illegality
does not attach per se to an exclusive hiring hall system
operated by a union under a collective-bargaining
contract providing that in connection with referrals by
the union a preference shall be given to area residents of
2 years or more in accordance with the extent of their
work experience as employees of employers signatory to
parties to the collective -bargaining contract, and providing
that no discrimination against persons seeking employ-
ment because of membership or non -membership in the
union shall be shown by the union either in the
maintenance of a referral list or in the referrals for
employment, and that the selection of applicants for
referral by the union shall not in any way be based on or
affected by union membership, by-laws, rules , regula-
tions, constitutional provisions, or any other aspect of
union membership, policies or requirements. The evidence
shows that the exclusive hiring hall operated by
Respondent Union is operated under such a collective-
bargaining contract . Therefore there is no presumption
that the denial by the Respondent Company and
Respondent Union, in the operation of the exclusive
hiring hall system, of reemployment to non -members
lacking permanent residence in the area specified in the
Contract, and lacking work experience as employees of
contractors signatory or parties to the . Contract, is on its
face discriminatory conduct violative of the Act. The
burden is on the General Counsel to prove that the conduct
in issue constitutes illegal discrimination . [Citing cases.]
[Emphasis supplied.]
I find from the evidence that Respondent Union had
a referral list or register containing names of competent
operating engineers with 2 years' permanent residence
who were either living in the specified area or had left it
temporarily with the intention to return, kept current
by the re-registration of these engineers on the list or
register on the first Monday in each quarter of each
calendar year . I find that these engineers received a
seniority or priority number based on the extent of work
experience as employees of contractors signatory or
parties to the Contract, and were listed on the register or
list in the order of these numbers from lower to higher. I
find no evidence in the record that the names were
placed on the list or register , or in any order of
preference on the list or register, by reason of member-
ship in the Union or in connection with membership in the
Union. It may well be that all those registered on the
referral list and having seniority numbers were union
members since the Contract and prior collective -bargain-
ing contracts had union security clauses requiring
membership in the Union after 7 days of employment, or
after 30 days prior to the amendment that changed the
period for the construction industry to 7 days after
employment from 30 days after employment. In any
event, if it was the case, it cannot be assumed that the list
or register was discriminatory in favor of those having
membership in the Union, and against those not having
membership in the Union . [Citing cases .] [Emphasis
supplied.]
A like result was reached in International Union of
Operating Engineers, Local 302, AFL-CIO, 186 NLRB
No. 4 where a contract between the Union and certain
chapters of Associated General Contractors covered a
certain geographical area which coincided with the Union's
jurisdiction . The Trial Examiner's Decision states:
Section 3 outlines the order of reference, for hiring
or rehiring, from an out-of-work list in the following
sequence : Group 1, operating engineers "who have been
employed by an employer or employers, parties to this
agreement" who have worked 500 hours or more within
a period of 2 years immediately preceding registration
date; Group 2, operating engineers with the same
qualifications but less than 500 hours employment
within the 2 year period ; and Group 3 all other
applicant operating engineers. [Emphasis supplied.]
s s s s s
"Employers" under this paragraph mean , ( 1) any
employer party to this Agreement, (2) an out-of-town
employer who adopts or works under this Agreement
and contributes to the health and welfare and/or
pension plans, and (3) any employer who employs
operating engineers under the terms of this Agreement
and is a contributing employer, within the meaning of
the health and welfare and pension plans.
And, after discussing Section 8 (f) of the Act, continues:
Respondent urges that a consistent application of a
requirement that a registrant on the out-of -work list
have prior employment within the geographical area
covered by the collective-bargaining agreement be-
tween Local 302 and Mountain Pacific-AGC is not
violative of Section 8(b)(IXA) or (2) of the Act. [Citing
cases.] I concur. [Emphasis supplied.]
While the decision does not indicate whether or not a
union-security clause was incorporated in the contract, it is
most unlikely that it would not be.
Although most cases involve the construction industry,
as indicated, supra, some do not and I do not believe such
to be a distinguishing factor. Also, although dicta in the
IATSE, LOCAL 659 1205
International Marine Terminals, Inc., case , supra, indicated
that a union-security clause might make a difference in
result, I note that it did not affect such in J-M Company
Inc., supra, nor apparently also in Operating Engineers
Local 302, AFL-CIO, supra. Another difference herein is
that , although the contracts contain union -security clauses,
in fact membership is not ordinarily obtained until 2 years
after acquiring roster status. (See supra and post).
The foregoing is in my judgment conclusive of the
validity of the hiring arrangement (or roster . system) which
I find would not violate the Act unless there is specific
evidence of preference because of union membership or
other similar requirement as claimed by the General
Counsel which will be examined hereafter.
F. The Permit System22
From 1943 to 1967 Respondent issued cards headed
"Work Permit" which read : "This is to certify that
11- - is granted permission to work as - - from -- .
According to Nave and Emmett Dambacher, an
employee, it was Respondent's usual practice not to
accept a person into membership until he had been
a permit holder for about 2 years. According to Nave,
the permit system was established to give an
individual a means of identification , particularly when he
went on location outside of Los Angeles County. Nave
testified it was customary on location that crafts or other
members would ask a man to show some type of
identification as to whose jurisdiction the man might be
working under. The permit card was used in the same
fashion in this respect as a membership card and the
amount of the permit fee and service fee equivalent to the
amount of dues which were on a graduated scale.
According to Nave the payment of a permit fee or the
acquisition of membership had nothing to do with
obtaining or retaining employment . Batchelder who
administered the physical roster system was unaware of the
permit system . As previously set forth , according to Nave,
permits were not issued to an individual unless he had
worked the amount of time for a signatory necessary to
have achieved roster status which was determined from his
employment record . An individual was entitled to a permit
if he desired one if he had been so employed. Individual
employees asked for permits and after a 2-year waiting
period were granted membership in the Union . According
to Nave , as stated , there were seven or eight persons who
did not take out work permits including Emmett Dam-
bacher . Dambacher admitted working in 1965, 1966, and
1967 without taking out a permit or paying any money to
Local 659 until after May 9, 1967, when he became a
member. Although Joel Colman , discussed in detail
hereafter , started working for Reagan Associates on
January 26 , 1968, Colman testified he paid no money to
the Union until after he had achieved group I status on
July 25, 1968. At that time he paid an initiation fee.
Colman said he never had a permit and never paid a
permit fee . No one made a demand that Colman be fired
or pay dues or permit fees to the Union. However, I note
that the Reagan employment was in 1968 and that the
permit system had ended in 1967.
According to Nave , the permit cards were not shown or
required to be shown to employers nor did an employer
call and ask the Union to issue a permit . Neither did a man
have to show a permit to work . The Union tried to get men
with requisite worktime to come in and give the Union the
necessary information concerning the amount of days
worked and at such time permits would be issued to them.
If the individual refused to pay for a permit , according to
Nave no issue was made of it. As long as the men were
qualified and had roster status, it was their right to work.
The General Counsel contends that the permit holder
enjoyed an advantage in the employment market because
he was on the Union 's availability list which most
signatories did not have nor did most of them have a copy
of the physical roster , so that for information as to who
was eligible under the employment terms of the contract
they would turn to Respondent . According to General
Counsel, Respondent 's assistance came in the form of its
availability list which purported to list the persons eligible
for employment who were presently available for work.
General Counsel contends "however , permit holders as
well as persons on the roster are permitted to be listed on
the availability list. When an employer calls in to find out
who is available the list of persons in the top priority is
read to the employer. The list might include permit holders
not included on the roster and unless an employer
specifically inquired he would not be informed whether the
person was or was not on the roster nor in what group the
person was ." The latter involves an issue which arose
throughout the hearing as between the "physical" roster
and "eligibility" for the roster. The General Counsel at this
point is referring to a physical roster . While the association
kept a physical roster, the eligibility requirements are set
forth in the contract.
From a contractual standpoint it might arguably be a
violation thereof to effect hiring through a list combining
the physical roster people with qualified persons eligible to
be on the roster if such were to result in hiring qualified
and eligible persons not on the physical roster ahead of
persons on the physical roster . In fact, except for
Dambacher's testimony concerning Cal Roberts discussed,
post, there does not appear to be any evidence of such
herein.
Further while literal compliance with the contractual
provisions for resolving roster status may be requisite
thereunder it would seem that if in fact the employees had
such eligibility for the roster and were entitled to be on the
roster they could be treated as such and employed as such
in preference to persons without the qualifications to be
placed on the roster . Accordingly, insofar as the Union
placed employees on its availability list and treated them as
the equivalent of those placed physically on the roster,
there would appear to be only the question of the accuracy
of the Union's so placing such employees , that is, were
these persons entitled to be on the roster . As set forth
according to Nave , the Union did inquire as to an
employee's employment record and kept certain informa-
22 There is no allegation in the complaint that the permit system was allegations of the complaint.
illegal, but evidence relating thereto was offered in support of the other
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion with respect thereto. Nave said that before a permit
would issue the Union required information from an
employer that "he had worked for them for a given period
of time and the employer felt that in their experience of
working with this man that he had qualifications and
capabilities and aptitude for this type of work." The period
of time was "thirty days or ninety days, whatever the case
may be." 23 If the individual was so, entitled, it would
appear that he could properly be treated accordingly.
According to Nave's testimony, it does not appear (except
for the limited exception noted in fn. 23) that any persons
were placed on the Union's availability list in this manner
who had not met the contractual eligibility requirements.
However, according to Emmett Dambacher24 he worked
with persons not eligible for roster placement who were
issued permit cards. Dambacher said when he worked as a
grip 25 he worked with a Cal Roberts and a Joe Marquette,
Jr., who had never worked 1 day in the industry. According
to Dambacher, Joe Marquette told him this and that he got
the job because he got a permit from Local 659.
Dambacher also testified ". . . and when I was working
for MPO, this occasion would arise."
There would be an assistant who I had not seen around
and I would ask him; in most cases they were very open
about it. They would say, "No, I am not on the roster, I
am not in the Union. In fact, I do not have time to go
on the roster yet but I have a permit from Local 659.
TRIAL EXAMINER: How many such persons were
there that told you this?
THE WITNESS: Oh, I don't know, four or five, six,
eight.
TRIAL EXAMINER: Did you see their permit cards?
: s s * s
TRIAL EXAMINER: Well, let us get at this. Who were
these people?
s s s s s
THE WITNESS : Well, I have established that Ron
McMannus and Serge Haignere were . I believe it came
up in Mr . Doyle's testimony that they were listed as on
the permit roster . Now, these people were not on the
industry roster nor were they members of the Union.
TRIAL EXAMINER : You are saying they were not
physically on the roster, is that what you are talking
about now?
THE WITNESS : They weren 't physically on the roster.
TRIAL EXAMINER: All right.
Now getting back to the other, who else did you talk
to? You mentioned seven, eight or nine people whom
you saw working there and you did not recognize them
23 According to Nave, permits were not issued nor permit fees paid until
a man acquired roster status with the exception that if a man were going "to
go on a job where we could not supply our normal manpower" (a location)
and maybe "he'd be gone for two or three weeks and he'd be running into
that period of time (to qualify) I think what we would try to do would be to
help him as a means of identification, again."
24 Dambacher started as a "grip" 27 years ago, first worked as an
and you asked them how come they were working or
something like that.
THE WITNESS: Well, now, all of these was not a card.
I mean , some of it was possibly an assumption on my
part.
I was working for Jack DeNobi as a crab dolly
operator. Matthew Leonetti was on that same case. We
were shooting religious programs for television. Doyle
Nave came in on the set and asked Matthew if we were
going to finish shooting that night and Matthew said,
yes.
He said , "Be sure and get your name on the list so
that you can get your time in for your thirty days-you
know-or your ninety days in the industry," whichever
one he said.
Now, I have worked at Schnitzer's where Cal
Roberts has told me that he did not have a card nor
was qualified to go on the roster, even, but that he had
a permit in the Union.
Joe Martinett,26 I worked with the first, second and
third day he ever worked in the industry and he told me
that he had to have a card before he could get the job
and that he did have a permit in Local 659 before he
took his first day's work.
Now, I had no reason not to believe these people. In
Joe's case, I had seen his permit.
Dambacher also said Cal Roberts was working at Gerald
Schnitzer's as assistant cameraman and he as a grip at a
time Dambacher was physically on the cameramen's roster
and Roberts was not.
As for persons named above by Dambacher, I note first
that his testimony either has no probative value or little
probative force toward establishing the conclusions assert-
ed by him as to the status of these persons-since
essentially predicated on hearsay. Second, as to certain
persons and instances specified, it is clear they would be
outside the 10(b) period, while in other instances it is not
evident whether they were within or without the 10(b)
period.27 Finally with respect to the persons named, the
record reflects Serge Haignere's starting date in Local 659's
jurisdiction was 10/15/65 and permit date 12/3/65,
membership date 4/26/66 and he went on the physical
roster (of the Association) on 8/29/66. Ron McMannus'
starting date in Local 659's jurisdiction was 10/15/65 and
permit date 12/3/65 and membership date 5/1/67 and he
went on the physical roster 2/20/67. The record reflects
Matthew Leonetti (a loader) started work under Local
659's jurisdiction 10/29/64, received a permit on 7/26/65
and became a member 6/ 1 /67 and is listed on the physical
roster as of 2/23/67. As for Cal Roberts and Joe
Marquette, I note that the names of Herbert C. Roberts
and Joe Marquette (together with the names of Haignere,
McMannus, and Leonetti) appear on a four-page list of
names submitted as attachment to a letter by Aller to the
Association on July 19, 1966, as persons working under
assistant cameraman over 5 years prior to the hearing and was first placed
on the cameramen 's roster August 23, 1966.
25 A grip is a member of the mechanical crew who Colman said moves
the cameras , sets stands, etc.
26 I find no records relating to a Martinett . This may be an error in
transcription and probably Joe Marquette . Jr.. is intended.
27 June 20, 1966, would be the 10(b) cutoff date.
IATSE, LOCAL 659 1207
union jurisdiction but not on the industry experience
roster. Also referred to and accompanying Aller's letter
were two draft letters, one undated and one dated April 4,
1966, to "Dear Sir," advising that the Union believed the
individual had met the necessary qualifications and asking
their employers to furnish the Association necessary
information to be placed on the industry experience roster.
Dambacher also asserted that Aller, who was at the time
business manager of Local 659, sometime in 196528 told
him that he had to find his own job and that the Union did
not issue permits.29
Actually, as Nave credibly testified, the Union did not
maintain a list30 of nonqualified persons or give permits to
such.
The General Counsel asserts "according to Dambacher's
undenied testimony after he was placed on the roster he
was refused a permit card and told by Nave that he could
not use the availability list without a permit." Dambacher
also testified as follows:
Q. Now, Mr. Dambacher, after you were placed on
the industry experience roster in August of 1966, did
you make another application for membership in Local
659?
A. Yes, I did.
Q. All right.
And did you have any conversation with anyone
from Local 659 relative to this application for member-
ship?
A. Yes.
Q. All right.
When did you make the application for member-
ship?
A. The day after I went before the camera
Qualifications Committee, I went to Local 659 and I
believe I talked to Mrs.-
Q. Are you referring to Mrs. Burley?
A. Yes.
And I asked for an application for membership in
Local 659 and I asked that my name be put on the
availability list.
According to Dambacher, Mrs. Burley gave him an
application for a permit and he said that he did not want a
permit but wanted an application for membership and to
be put on the availability list. Dambacher testified Mrs.
Burley then called Nave who according to Dambacher told
him the policy of Local 659 was to require a permit for a 2-
year period and Dambacher would not be able to use the
availability list unless he had a permit but that Nave would
allow Dambacher to use the availability list until the
problem as to permit concerning him was resolved.
Dambacher admitted on cross-examination that Nave did
give him an electronic telephone recording number so that
he could indicate when he was available for work.
Dambacher also testified he had tried to obtain a permit
and was refused on a number of occasions after he made
application to be on. the industry roster in January 1966
and his appearance before the Camera Qualifications
Committee but could not recall the dates.31 Dambacher
said he did not say he had a job at the times when he went
in to see the Union about a permit and added "I don't
think it came up whether I was working or whether I was
not working."
Nave testified (prior to Dambacher's testimony) on
examination by Attorney Adler:
Q. (By Mr. Adler) Did you not, on occasion, tell
persons that they would not receive referral service
unless they had a permit?
A. Did I tell anybody that? No.
Q. Did you ever hear anybody else at the Union
tell anybody that?
A. No. Permit was not a condition of employment.
Q. Did you ever hear Herb Aller state to an
employee or a person employed in the industry or who
was seeking employment in the industry that he, Herb
Aller, controlled employment in the industry and he
intended to continue to control employment in the
industry?
A. Never heard him make that statement.
Q. Did you ever hear him make a statement similar
to that?
A. How could he employ a man when the employer
is the one-
TRIAL ExAMINER: You have answered the question,
Mr. Nave.
THE WITNESS: I was trying to help you.
MR. ADLER: I appreciate that.
Q. Were there persons who held permits during
1966 from Local 659 who did not have what you
consider roster status?
MR. MAMET: The question has been asked and
answered.
A. (By the Witness) Not that I recall.
In any event, as set forth Dambacher did admit that
irrespective of whether or not he held a permit or
membership he was allowed to use the availability list by
calling in, supra. Dambacher further testified:
Q. And not until you became a member, did you
pay anything to Local 659?
A. That's correct.
Q. And you never had a permit?
A. That's correct
Q. And nevertheless, you were on the availability
list, were you not?
A. Yes, I did receive one call so I must have been
on the-list.
Q. Are you disputing the fact that you were on the
list?
A. Yes, most of the time. Would you like me to
explain that?
Dambacher also admitted his name was submitted to Len
28 Clearly in any event outside the 10(b) period.
29 Aller, it was agreed by all concerned, was so ill that he could not testify
at the hearing and this explains his failure to testify on a number of matters.
ao Respondent did at times have some names of persons who had
performed some work that it would furnish on request if its available list of
qualified persons were exhausted.
3' The complaint asserts and Dambacher claims that Respondent caused
Wilding to let him go on June 14, 1966. Not only is this outside the 10(b)
period , but the testimony in support of this is hearsay which , as I stated at
the hearing, I would not use as a basis of a finding.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ephraim of Schwitzer Productions even though Nave
thought he was a "troublemaker." 32
I am crediting Nave's testimony with regard to the
foregoing, first, because it is evident that Dambacher's
testimony was in numerous instances conclusionary rather
than probative-such as with respect to the status of
persons he worked with and with respect to the permit
system and the use of the roster. Second, in instances there
is variance or inconsistency between direct and cross-al-
though at first asserting he was told he would not be
granted the use of the Union's availability list without a
permit, he admitted he had been given an electronic
recording number to call and in fact he had been referred
to a job and had worked without a permit or paying fees to
the Union. I also observed the witnesses carefully and was
particularly impressed with Nave's efforts to respond
honestly,33 while both a reading of the record and my
observation of Dambacher led me to conclude that he felt
strongly about matters and was at times accordingly
responding with conclusions and assertions.
The General Counsel contends and Nave admitted that
Respondent requires its members and permit holders to
report to Respondent as to when they go on distant
location as to the identity of the camera crew and to report
if a member of the camera crew has no affiliation with the
Respondent. Accordingly, the General Counsel states that
"to hold a permit card means a fellow employee will not
initiate an inquiry into one's eligibility to work." The
General Counsel then adds: "It is clear that for all
practical purposes eligibility to work was determined not
by the Roster maintained by the Association but by the
`roster maintained by the Union.' " This contention
evidently is that the latter was both the fact and illegal. I
have previously considered this matter, supra. In addition,
the Union could be the only one to check on compliance
with the contract since the Association, according to
Batchelder, had no direct way to check on whether the
employers were hiring in accordance with the contract.
Only the Union maintained an availability list and only the
Union was in a position to check on whether there was
compliance with the contract. The employees insofar as
they might check and report back to the Local were
furnishing information which would enable the Union to
police the contract. If the employees knew the individual
there would normally be no problem; if they did not, and
this was particularly true on location, then there could be a
problem of identification. The permit, at least at the time it
was utilized, acted to identify the individual, to verify that
the Union had checked him out and, ordinarily, that he
had satisfied the Union and met the requirements to be on
the roster. As long as the permit was not mandatory to his
working on the job, there could be no violation. Nave, as
set forth, testified that there were some seven or eight
persons who worked without a permit, including Dam-
bacher. Whatever may have likely been the overall effect of
the system involved here and whatever may be likely to
result, the Supreme Court has made it clear that there is no
per se inference to be drawn from such a situation. See
Teamsters Local 357, International Brotherhood of Team-
sters, 365 U.S. 667. Accordingly, I find that the permit
system, as set forth and analyzed in the record, does not
lend support to the General Counsel's contentions as to
any claimed violations herein and I do not find any illegal
conduct resulting therefrom.
G. The Tri-City Agreement
The Tri-City Agreement involves certain agreements
among the locals of the Union with respect to working in
one another's territory with the General Counsel contend-
ing that this in effect amounted to an exception to the
roster system in favor of union members.
The Tri-Local Agreement in part is as set forth in the
complaint, supra. There are three cameramen local unions
in the IATSE-Local 644 in New York, Local 666 in
Chicago, and Local 659 in Los Angeles County-with
jurisdiction over 13 western States . Local 659 has no
agreements with the New York companies who are covered
by the 644 agreement . According to General Counsel's
witness, Melvin Dellar, in charge of MPO-TV of California
and of the West Coast business that might be conducted by
MPO Videotronics (located in New York). MPO Video
Electronics of New York, a New York corporation, shoots
all over the United States. It does not have an agreement
with Local 659 but with 644. Local 659 has no control over
MPO Video Electronics and the position of the Company
is that it is unrestricted in where it operates. According to
Nave, if Local 659 has no contractual agreement with the
New York employers, an individual coming in from New
York has the legal right to work any place he pleases. Local
659 attempted to have the New York companies sign a
basic agreement but apparently without success. Nave
testified that the Tri-Local Agreement was designed to
protect the respective jurisdictions of each local and the
arrangement worked out was that when the members of
one local worked in the territory of another no one in the
territory in which the work was performed would be
displaced and the manpower would be supplied from
within that particular territory. Accordingly, although the
Union could not control nonsignatories and employees
covered by agreements in other territories they would insist
that an entire photographic crew come from the territory
where the work was being performed so that, while Local
659 could not prohibit New York cameramen from coming
in, if the sister local and its members cooperated, they
would insist that an entire crew be hired from the roster.
This would be the case even though the New York
company brought its own employees, they would then be
matched man for man from the roster. To police this, the
Tri-Local Agreement would require notification to the
Union in whose territory the work was being performed by
either the sister local or the man coming in. Sometimes a
partial crew was brought in or only a director of
photography, and a local was asked if anyone was
available to fill in the rest of the crew. In this latter event
the Local 659 crew would be the entire crew. In some
instances the crew or the Company did not report that they
32 In this connection in discussing available personnel, Nave gave 33 Wherever I have referred to Nave's testimony herein, it is credited
Dambacher's name to Ephraim, according to Ephraim, with the comment unless otherwise indicated.
he is a "troublemaker."
IATSE, LOCAL 659 1209
were coming in or the Local (659) was unaware of it and
would know nothing about the crew working in Los
Angeles territory. According to Nave, whenever the Local
knew of a New York company who brought in a director
of photography or crew then Local 659 required a
collaborating director of photography and crew if one were
brought in or if not hiring a crew from the roster. The Tri-
Local Agreement provides that when two-thirds of pro-
duction is made in any one territory, the local entering the
territory shall be permitted to enter with a camera crew
and the territory in whose jurisdiction the work is being
performed shall put on a full collaborating crew. Nave
recalled only one picture when two-thirds was made in
New York and the picture was finished in California.
The General Counsel asserts: "the evidence shows that
under the agreement cameramen from Local 644 in New
York worked for signatories without regard to the roster
provision of the collective-bargaining agreement" The
General Counsel refers to certain testimony of Nave,
Dambacher, and Stewart with respect to claimed incidents
of cameramen from Local 644 working for signatories
without regard to the roster provision. There is some
evident confusion in response to a question relating to
standby directors in 1966. Counsel Adler asked Nave:
Q. (By Mr. Adler) In 1966, were there occasions, to
your knowledge when New York cameramen were
engaged in production in Los Angeles for an I. A.
signatory when there was not a local stand-by director
of photography?
A. Oh, yes. There's been many occasions where
they have come out and worked but the I. A.
cameraman coming out of New York was working for
the New York company in his jurisdiction, but the
cameraman that we had here would work on-was on
local payroll here.
Nave was also asked about Local 644 directors of
photography working in Los Angeles county without
standby directors.
Q. And they worked in Los Angeles county during
1966 and 1967 without stand-by directors of photogra-
phy.
Is that not true?
A. Not to my knowledge.
Q. You know of no instance in which they worked
without a Los Angeles director, without-
A. We caught some that snuck in here without
reporting to us and we found it after the fact. This
happened. This happened.
Q. You had a report, did you not, from the crew
members who were there with any company; would
you not know whether there was a director of
photography from the information that was phoned in
to you?
A. Not necessarily.
Nave was asked about Torbin Johnke (a Local 644
cameraman):
Q. And did you know that Mr. Johnke was
employed in the Los Angeles area?
A. We learned of his employment here when we
got some records from the health and welfare that his
name appeared on the health and welfare benefits, that
he was employed by MPO, which was illegal under our
contract because he was here on assignment out of
New York and unfortunately, he was one of these men
coming out of New York previously who had gotten
acquainted and been working for MPO.
Nave added "nobody had reported to him that he was
back here working . . . and
THE WITNESS: The only thing I could add is that in
order not to cause any distrubance over the fact that
they had committed themselves to this man and they
had some kind of a contract, I think he was permitted
to continue on the assignments that he was on, to finish
up the assignment that he was on.
Nave was also asked:
Q. Now, when MPO or any other commercial
producer that was a signatory to the I.A. Independent
Agreement brought a cameraman from New York to
work in Los Angeles and to work with a camera
operator and assistant cameraman who were members
of Local 659, did you in all instances require a stand-by
for that director of photography?
A. Yes.
Dambacher testified as to working in some instances
with directors of photography from New York without a
collaborating crew. He was unable to state whether the
Union was aware of or had checked out these particular
instances. This would not necessarily contradict Nave who
conceded that there were instances where the Union was
unaware of the presence of Local 644 people. Carl Stewart
representing the Commercial Film Association testified to
a conversation with Aller as follows:
Q. (By Mr. Adler) Mr. Stewart, in your meeting in
May of 1968 about which you have testified with Mr.
Aller, did he acknowledge that he knew that the
members of your Association were bringing in directors
of photography from New York and employing them
without a standby?
A. Yes.
Q. Did you ever have a discussion with Mr. Aller
or any other representative of the I.A. with regard to
why producers could employ New York Cameramen
but could not employ local non-roster cameramen?
A. Yes..
Q. Do you recall when such discussion took place?
A. At the time we were discussing this Tri-Local
Agreement and apparently, it was understood under
the terms of the Tri-Local Agreement that New York
cameramen could come out here even though we could
not hire local cameramen.
Q. Did Mr. Aller explain why you could not hire
local cameramen?
A. Because of the experience roster.
s a :
Q. (By Mrs. Robbins) Did Mr. Aller explain why
you could use New York directors of photography?
A. Because under the Tri-Local Agreement, appar-
ently, this was an inter-union agreement and somehow
was an exception to the experience roster.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did Mr. Aller say this?
A. Yes.
Q. All right.
A. And there was further conversation to the effect
that they had let the members-they had let the New
York cameramen come in in violation of the Tri-Local
Agreement without hiring standbys but because we had
attacked the experience roster, they were going to
enforce the Tri-Local Agreement against us.
TRIAL EXAMINER: In what year was this conversa-
tion?
THE WITNESS: This was May, June, July, this period
in here , after the Pelican-
TRIAL EXAMINER: 1968?
THE WITNESS : Right.
The latter part may be consistent with the testimony of
Melvin Dellar (of MPO-TV) who testified that in the
period 1958 to 1968 Aller discussed his employment of
New York cameramen from time to time, that Aller was
aware of such employment either from Dellar or heard it
from Local 644. Dellar said in most cases from 1958 through
1968 he did employ a Local 659 standby. He also said "there
was a very short time34 that we did not have to employ a 659
man when a 644 man came into the territory." (Emphasis
supplied). Dellar said thereafter they did have to have a
standby-that Local 659 required this.
The foregoing indicates an arrangement among the
locals to work out a method of adjustment in terms of units
that would travel or companies, such as MPO Video
Electronics, that had local subsidiaries in California. The
fact that there may have been some variations from the
Tri-Local Agreement does not, in my opinion, nullify the
validity of the roster system which was limited to and
designed to be protective of employment in the Los
Angeles area. There was a general requirement that there be
a standby crew or collaborating crew which would work
with and/or fill in the New York crew so that there would
in essence be fulfillment with the roster requirements. If
the New York company operated without the knowledge
of the Union or without reference to a signatory, in such
event Local 659 would evidently have no effective means
of enforcing the standby (or collaborating) provisions-
which it sought to enforce except for a"short period" as set
forth above. Accordingly, I find no violation of the Act by
virtue of the Tri-City Agreement or its application herein.
H. The Allegations as to Lapenieks and Colman
1. Introductory
As to Lapenieks and Colman, the evidence in my
opinion will not show anything other than the application
of the roster system, but I will briefly consider the same. In
addition, I am finding that both Lapenieks and Colman as
directors of photography were supervisors during all times
material. Further, Respondent contends that Colman was
an independent contractor. The General Counsel asserts
that the foregoing makes no difference under her theory of
the case and cites cases in support thereof. These cases will
34 The exact period of nonenforcement of the standby requirement is not
precise but evidently prior to sometime in 1968-from combining Stewart's
and Dellar's testimony.
be analyzed and considered hereafter. Although there is
substantial evidence in the record to indicate that Colman
was an independent contractor and it may be that such a
finding could be made , since I am concluding that both
Colman and Lapenieks as directors of photography were
supervisors, I deem it unnecessary to resolve whether or
not Colman was an independent contractor.35
2. Supervisory status of Directors of Photography
Colman and Lapenieks
Director of Photography Joel Colman testified: "There
are usually creatively now, two lines of authority on the
set." Colman said one line would be the director and
assistant director in charge of talent. Colman was then
asked: "Is the director of photography in charge of the
mechanical crew?" He answered, "Creatively, yes." And
said, "Nothing beyond that that I can think of." Colman
was also asked:
Q. Now by creatively, you mean the end result, the
image that is secured on the film?
A. Right.
Q. And the director of photography in getting this
image is in charge of the camera crew? Is he not?
A. In getting that image, yes.
Q. And in charge of the mechanical crew?
A. Creatively, yes.
Q. Getting the image, getting the end result, is that
what we mean?
A. Getting the visual image on film, yes?
Colman was asked whether that included the camera crew
and he answered: "Most of the time, yes." He was asked if
it included the electrician's crew and answered, "Usually
yes." He was asked whether it included the grips and he
answered, "Usually yes." Colman was asked: "Is it not true
that the director tells the director of photography what
results he wants and then the director of photography has
to interpret this in terms of what specific instructions he
will give to the mechanical crew?" Colman answered,
"yes." He was asked if production meetings were held prior
to shooting and replied they were. Colman testified that the
people in attendance in production meetings were limited
generally to the producer, the director and his assistant, the
director of photography, and the client and in the case of
MPO, Melvin Dellar, who was the head of MPO-TV of
California. Colman said the director of photography was
there for the purpose of obtaining the necessary informa-
tion so that he can instruct his mechanical crew and get the
result. He was asked: "Now as a matter of fact, the director
himself never gives any instructions to the mechanical
crew, this all comes from the director of photography?"
A. Speaking of electricians, grips and camera crew,
yes.
Q. And the director of photography specifically
tells the mechanical crew what he wants them to do?
A. To achieve the effect he's after, yes.
Accordingly, under Colman's direction as director of
photography were and are the camera crew including an
operator cameraman and assistant cameraman who loads
35 Some of the "evidence" relating to Colman and Lapenieks may be
outside the 10(b) period, but, in view of the resolution made hereafter, this
would not affect any findings or conclusions herein.
IATSE, LOCAL 659 1211
the camera, handles the lens, and does whatever the
director of photography instructs him to do. There are also
the grips and the gaffers (head electricians). In an affidavit
given to the Board, Colman stated:
As director of photography, I tell members of the
mechanical crew specifically what I want them to do. I
do not tell them the result I want and let them
determine how to do it. I specifically instruct them
what to do. For example I tell the gaffer where I want
lights located, the intensity desired, etc. I tell the grips
where I want the camera located and the sequence in
which the camera location is changed.
Colman was asked if the foregoing and certain other parts
of the affidavit were entirely correct. Colman answered:
"Yes, I think it is essentially what I was-felt at the time
and the answers I gave at the time ." Colman was asked if
he had something he wanted to add and responded, "No."
He then added "there were other things necessary . . . to
give a true picture." At one point, Colman sought to
minimize his supervisory functions, but after being shown
his affidavit it became evident that the director of
photography decides and recommends how many assistant
cameramen are needed in the production meeting, but may
not always get them. He also can recommend who would
be on his camera crew. After first stating sometimes his
recommendations would be followed and sometimes not,
Colman admitted that each time he asked to have someone
on his crew in terms of camera assistant when there was an
opening, his recommendation was followed "as nearly as I
can recall." Colman has selected. his own gaffer (head
electrician). Colman also said as director of photography
he also determines what equipment he will need and what
size crew in excess of the minimum and participates in
determining how many electricians are necessary. Colman
also stated that he recommended a gaffer be discharged in
one instance and that although his recommendation was
not followed immediately it was eventually.
Dambacher also testified as to the fact that there were
the same two lines of supervision including the director
and the director of photography. Alex Grasshoff, who was
a writer-producer-director called by the General Counsel,
also testified that Lapenieks as director of photography
had the power and authority to make recommendations
with regard to hiring or firing other members of the crew.
He was asked by Mr. Adler:
Q. I think I asked you in making your judgment
would you rely upon what you yourself observed while
being on the set as a director.
A. Yes, but I would be inclined to take his
recommendation even if I didn't understand it if it
related to his job.
Grasshoff testified that the directors of photography direct
the camera crew, they tell the camera crew what to do, they
direct the grips and the gaffers and that the director of
photography was in charge of the camera crew, the grips,
and the gaffers.
Although Colman tried to make it appear that all he did
was related to the creative responsibility and that he didn't
have to tell the crews much, he conceded that initially he
would have to tell them what to do, but that eventually
they got to know by his grunts and groans what he wanted.
It is clear from the foregoing that the directors of
photography ordinarily, and in both the Colman and
Lapenieks cases , participated in management meetings,
directed the work force, and instructed crews of camera-
men, grips, and gaffers in their work. This would be in
detail where necessary and less so where the crew was used
to the director. Directors of photography are also responsi-
ble for the results achieved and can effectively recommend
persons for employment or select them for their camera
crew and apparently have the power to effectively
recommend discharge. Since directors of photography
(including Colman and Lapenieks) responsibly direct and
assign the work force and can effectively recommend
employment, selection, and discharge, it is clear and I find
that Colman and Lapenieks as directors of photography
were supervisors within the meaning of the Act. See Society
of Motion Picture and Art Directors Columbia Pictures, et
a!., 94 NLRB 456 and see also Northwest Publications, 116
NLRB 1578.
3. Qualifications of Lapenieks and Colman to
perform the work
The position of the General Counsel and the Charging
Party is that with respect to Vilis Lapenieks and Joel
Colman each was fully qualified to handle and perform the
functions of director of photography having had extensive
experience with various employers who were not signato-
ries to the contract. For the purpose of this discussion, I
am assuming that each had requisite technical and
professional qualifications for the position.
4. Circumstances relating to Lapenieks and
Colman
All of Lapenieks prior experience was with nonsignato-
ries including about 4 years as staff director of photogra-
phy for Wolper Productions. In July 1966, according to
Director Alex Grasshoff, he told Vice President George
Flaherty of IATSE, that Y-A Productions, Inc., was doing
a feature documentary called the Young Americans and he
wanted to sign an IATSE contract but desired to use a
particular cameraman, Lapenieks. Flaherty called Respon-
dent's business agent, Aller, into the conversation. Accord-
ing to Grasshoff, Aller said he didn't want Lapenieks in the
IATSE, that there were plenty of good cameramen in
Local 659. Grasshoff insisted that he wanted Lapenieks as
director of photography. Aller at that point said, according
to Grasshoff, "Well, I suggest you go out and make the
picture nonunion. We don't make any deals here. You
either sign an IA contract or you don't." At this point,
Grasshoff testified Aller said, "Well, I'll tell you what, I'll
make a deal with you, you forget about that fellow
Lapenieks and I'll waive any standbys for you in Chicago
and in New York." There was a discussion about
Lapenieks' work and that apparently ended the conversa-
tion. On cross-examination, Grasshoff testified:
Q. But the question of following the seniority
provisions of the contract had nothing to do with
whether a man was in the Union or not, did it? That
did not even come up in the conversation?
TRIAL EXAMINER: Which question is he being asked?
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. (By the Witness) Of course , it did . What else?
The man is not in the Union , he is not an I . A. member,
he is not a card member of the Local 659 , therefore, he
could not work on my picture . That was the problem.
Q. (By Mr . Mamet) Now, wait a minute . Did Aller
tell you that?
A. That's exactly what he told me.
Q. Find it in your affidavit . Find it . Twelve pages.
Find where you told this.
A. I may not have got into all of that but that's
exactly what he said to me.
Q. It is a twelve-page affidavit . Let us see what was
said . Find it.
A. I just told you now , I can tell you that 's what he
said.
First Grasshoff did not claim that his affidavit contained
any assertion that Lapenieks couldn't work because he
wasn 't a union member . Also I note Grasshoff 's assertion
about not being "in the union," or not a "member." It
appears from the testimony that at times reference was
made by various witnesses to the term "member" or
"Union." Whether these terms were actually said or
inferred is one of the questions . For instance, Alex
Grasshoff, after first appearing to contend that Aller said
Lapenieks was not a member of 659 , later admitted Aller
had not referred to union or nonunion but this was Grasshoffs
interpretation.36
Melvin Dellar at one point testified as set forth post he
must hire a "member" of Respondent . However , Dellar
subsequently admitted he drew the inference that "mem-
bership" was required , stating he wasn't too familiar with
the roster system . Dellar finally admitted more knowledge
of the roster system but said "Roster meant the same to
him as membership in the Union ," that it was "all one
thing to him-that was his conclusion ." In these instances
it is clear that witnesses were drawing inferences that were
not stated or involved.37
Regardless of what Aller may or may not have said,
assuming the roster system was lawful there would be
nothing illegal in the Respondent 's objecting to Lapenieks'
employment unless he had worked the time necessary to
qualify him for the roster. Correspondence occurred
involving Gordon Stulberg of Columbia Studios, the
financial backer of Y-A Productions , with respect to the
36 Grasshoff's testimony reads:
Q. Aller made no reference to the fact that any of the men that he
was talking about were Union or non-Union, did he?
A. No, not specifically.
Q. In fact, the only time that Union came up was when you
mentioned it and initiated it, was it not?
A. No.
Again, I repeat what he said about Lapenieks: He didn't want this
man, this particular man, in the 1. A.
Q. But already, you had been told by this man from Columbia
that the question of the seniority provisions would not be waived. You
understood that when you met with Aller. Is that correct?
A. Yes, I understood that he didn't want this man in the Union.
That is, in essence, what I understood.
Q. Now, and you are trying to tell us that this provision here
concerning the seniority provisions, when you were told that-Stulberg
told you that Aller would not waive the seniority provisions of the
contract, that you did not understand?
A. I understood that to mean that he is not letting a non-Union
cameraman work on this picture.
Q. But there was nothing that was said that made you understand
film and the use of Lapenieks. Between June 9 and 15,
1966, in an exchange of correspondence between Aller and
Stulberg, Aller stated that Lapenieks did not meet the roster
requirements and that Respondent would not agree to his
employment.38
In an exchange of communications on August 1 and 5
between Grasshoff and Flaherty, Grasshoff indicated that
Y-A would sign an IATSE Basic Agreement, but Flaherty
stated that IATSE would not sign a collective-bargaining
agreement with Y-A if Lapenieks was hired. Grasshoff
testified that about August 139 in a conversation with Aller
he agreed to use a cameraman other than Lapenieks and
Aller gave him a list of cameramen including Richard
Moore with experience in documentaries. Grasshoff
decided to use Moore, who informed Grasshoff that he
would not be available until August 18. Since production
was scheduled to start August 8, Grasshoff tried to find
another cameraman. He then contacted Aller and request-
ed Lapenieks be permitted to work until Moore was
available. Aller agreed but stipulated that Moore must
replace Lapenieks immediately upon Moore becoming
available and that Lapenieks not be given any photograph-
ic screen credit.40 On August 22, the first day he was
available, Moore replaced Lapenieks, but Lapenieks
remained with the production.
According to Grasshoff, there was an issue subsequently
with respect to Grasshoff asking Moore to permit Lapen-
ieks to handle the camera for a particular scene. Aller
telephoned Grasshoff concerning the problem and Gras-
shoff explaine,' ',e wanted to use Lapenieks on the camera.
According tc Lsshoff's initial testimony, Aller said, "No
you either stick with these people or forget it, we will all
walk out." Subsequently, on cross-examination, Grasshoff
said he didn't remember whether Aller said that. Grasshoff
admitted saying, "I will drop the picture if he will not allow
me to have a particular operator." And that Aller replied
that "he did not care." According to Grasshoff, about half
an hour later Aller called again and said he would make a
deal that Lapenieks could operate the camera and Moore
would stay on, but Grasshoff would have to agree that
Lapenieks would not get any photographic credit. Pro-
duction continued with Lapenieks as operator until it was
completed on September 15, 1966.
Thereafter, Lapenieks, according to Grasshoff, requested
that. This was your own personal interpretation.
Is that correct?
A. That was my interpretation. [Emphasis supplied.]
37 In this connection Lapenieks said Aller told him since he was not on
the industry roster he could not work. Lapenieks said the question of being
in or out of the Union did not exactly enter the conversation. Lapenieks
said he had not applied for placement on the roster because of "wrong
information" that he had to be a member of the Local to get on the roster.
Lapenieks said no union representative had ever told him he could not get
on the roster unless he were a member.
38 "Your letter of June 8, 1966 was presented to the Executive Board.
The finding was to the effect that counsel previously advised us and has
repeatedly advised us that all employment of First Cameramen and/or
Directors of Photography must be in conformity with the prior preference
provisions of the contract. It is our opinion that since the proposed
individual in no ways qualifies under the seniority provisions of the
contract, it is impossible for us to entertain your request."
in It would appear the time would be after that date in view of the dated
communications between Grasshoff and Flaherty.
40 According to Lapenieks, reputation in the industry goes up or down
according to one's screen credits.
IATSE, LOCAL 659
that he recommend him for roster placement on his work
for Y-A. Grasshoff said he refused, giving as the reason an
agreement with Aller "not to sign anything that would
enable him to get on the roster." Lapenieks testified that
Grasshoff told him that due to a conversation with Aller he
would not be given screen credit and he would not try to
put Lapenieks on the roster or get him in the Union.
However, Grasshoff subsequently denied that he and Aller
had a conversation (or an agreement) in which Grasshoff
agreed that he would not sign anything that would enable
Lapenieks to get on the roster. Grasshoff said he didn't
know the significance of his agreement not to give
Lapenieks photographic credit. The issue with respect to
roster credit, arose after the shooting was completed when
Lapenieks requested Grasshoff to give him a letter
recommending Lapenieks for roster status and setting forth
he had been employed as a director of photography.
Lapenieks evidently believed- when Grasshoff refused to
sign the letter setting forth Lapenieks' experience for roster
purposes that this was due to an understanding Grasshoff
had reached with Aller.41 This belief apparently continued
until the hearing when Grasshoff testified.
Although Grasshoff at first said that he was unfamiliar
with the seniority provisions when he talked with Aller, he
admitted on cross-examination that in an affidavit he gave
the Board he said, "On June 8, 1966 I told Stulberg of my
conversation with Aller. He wrote Aller a letter concerning
our using Lapenieks. Aller's reply was that the Union
would not make any exception to the seniority provision of
the contract." Grasshoff further admitted that Stulberg
told him Aller's reply was that the Union would not make
any exception to the seniority provision of the contract.
Grasshoff also testified that Aller had told him from the
beginning that he would not make any deviation in the
contract.
According to Grasshoff, Aller also said:
THE WITNESS: He said that he did not want this man,
Vilis Lapenieks, in the I.A., did not want him on this
picture. He said, "He is a troublemaker," and he says,
"and besides, between you and me, his work is very
amateurish and you don't need him. We have qualified
professional people."
As pointed out, supra, at one point Grasshoff appeared to
contend that Aller had mentioned that Lapenieks was not
a card member of Local 659. This was not in his affidavit
and, after examining it, Grasshoff admitted that Aller
made no reference to the fact that any of the men Aller was
talking about were union or nonunion and that this was
Grasshoff's own interpretation as set forth above. Gras-
shoff further stated that Aller did not even tell him that
Moore was a member of the Union.
The General Counsel is contending that Moore was not
on the "roster" and that therefore, insistence on hiring
Moore and not hiring Lapenieks was improper and not in
accord with the contract. Moore was not on the physical
roster, but there appears to be no question that he had all
of the qualifications for the roster and was so listed by the
41 Lapenieks was later placed in group I on the roster based on his
having had more than 130 days with Wolper Productions, which was not a
signatory at the time Lapenieks acquired his qualifying experience but later
became a signatory.
1213
Union. In fact, Moore had worked under the Union's
jurisdiction before 1954 and been a member of the Union
since June 1 , 1955. Since membership was not achieved
until completion of requirements for roster status were
fulfilled , Moore was eligible for employment not because
he was a member , but on the basis of experience that
would qualify him for the roster. Under these circum-
stances, I am unable to see where there was any violation
with respect to the employment of Lapenieks, if the roster
system was valid, which I have so found. In addition, as
pointed out, Lapenieks was a supervisor . I accordingly find
that the allegations of the complaint relating to Lapenieks
have not been proven.
Joel Colman's experience dates from 1954 and during the
first 7 months of 1966 he worked in excess of 30 days for
Ann Lee Lacy Associates, but none of his employment was
with signatories. Colman said that about the end of June or
July of 1966 Melvin Dellar of MPO-TV of California asked
him about taking a staff position with MPO as a
cameraman. According to Colman, he said yes and after
Dellar contacted New York, they agreed on a figure of
$40,000. Dellar said he would be given a 3-year contract
but would have to work exclusively for MPO. The details
of this so-called arrangement are not being spelled out
herein. There is a great deal of conflict as to what the terms
were but I do not consider them material to any necessary
resolution herein.42
Dellar testified without contradiction that he talked to
IATSE Business Representative Zeal Fairbanks,43 relative
to using Colman who was a member of NABET, another
organization of cameramen, with an IATSE crew. Dellar
testified Fairbanks said it would be all right with him, but
Dellar would have to check with Aller. According to
Dellar, Aller said that under no condition could Colman
work with an IATSE crew, Dellar offered to hire a member
of Respondent for a standby for an assignment scheduled
August 4 or 5. Dellar said that Aller refused and said that if
MPO used Colman, Aller would pull his people and the
balance of the IATSE people off the stage. According to
Dellar, Aller further said that Dellar should use a member
of Respondent for the August 4 and 5 shootings and Dellar
did so. Dellar said he continued to seek Respondent's
agreement to the hiring of Colman and assured Colman if
the Union withdrew its objections he wanted to hire him.
The General Counsel argues that it is clear that MPO
would have hired Colman as director of photography
except for Respondent's threat to pull its members off the
job and that Dellar's undenied testimony should be
credited. Although the precise terms of Dellar's "agree-
ment" with Colman for work are in controversy, it does
appear that he wanted to hire Colman's services and that
the "renumeration" would be predicated on a rate of
$40,000 for a year's work. While Dellar testified that Aller
told him if he hired Colman Aller would pull IATSE
members off the job and that he must hire a member of
Respondent, the fact is (as set forth supra and post) that
subsequently Dellar admitted that he had inferred that the
42 They would bear on the issue of independent contractor and also as to
backpay if such were to arise.
43 Fairbanks is deceased.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person hired would have to be a union member, but that
Alter had not so stated Dellar, supra, asserted he was not
familiar with the roster system and was inferring certain
things.
Although Dellar at one point claimed he knew absolutely
nothing about the roster provisions of the contract, he
subsequently admitted that in an affidavit given to the
Regional Office of the Board on February 10, 1967, he
stated:
In August 1966 I tried to get a waiver from Local 659
so we could hire Joel Colman. If we didn't get a waiver
to employ Colman we would have been in violation of
the agreement if there were other men on the industry
experience roster available.
From the foregoing it is clear that he did know about the
roster. Dellar further testified he stated in another affidavit
dated December 9, 1966, "when Groups I, II and III are
exhausted, Local 659 will, upon request, refer someone to
us who is not on the roster apparently from a list of such
people that the Union must maintain." After going over his
affidavit, Dellar admitted that as far as he used terminolo-
gy, "Roster meant the same to him as membership in the
Union." That it was "all one thing." Dellar then added that
no one had told him such, but it was his own conclusion.
Dellar finally admitted that he was no longer certain that
Aller had stated that he could not use Colman because
Colman was not in the Union, that he didn't remember
Aller stating that he could not use Colman, but that Aller
could have said Colman was ineligible or not on the roster.
Dellar also admitted receiving from Jerome Reiner, an
attorney, a letter dated September 15, 1966, pointing out
specifically the seniority provisions in the roster, the
availability status of the persons in the various groups, and
the fact that any deviation from the roster system would
constitute a violation of the agreement. A great deal of
testimony is in the record as to the contract and as to
Dellar's relationship with Colman, his effort to cooperate
with him, and his desire to use him. It is sufficient to say
that although Dellar's testimony as to conversations with
Aller may not have been contradicted for the reason of
Aller's unavailability that his ultimate examination as set
forth above reflected that Dellar had testified as to what he
assumed, that he admitted that the term "member" was not
used and he could not recall precisely what term was used.
Dellar also contradicted himself as to his statement that he
did not realize there was a roster because it is clear that he
did. Predicated on the foregoing, it appears evident that
what Aller was in essence stating to Dellar was that
Colman could not be used because of the roster system and
he was not therefore qualified. Whether or not Aller
threatened to pull people off or not in this instance I
believe is immaterial, because the question is whether or
not the Union was seeking to enforce the roster provisions
of the contract and if it was so doing the Union would be
entitled to oppose Colman's employment. My conclusion is
that in essence such was the Union's position predicated
upon the roster system. If the system is valid, the Union's
objection to Colman was valid. I have found the system to
be valid and therefore the objection it had to Colman was
not illegal 44 Furthermore, as found above, Colman in my
opinion was a supervisor. Accordingly, I find that the
allegations of the complaint relative to Colman have not
been established.
1. Contentions as to Illegality of Actions Involving
Lapenieks and Colman as Supervisors if the Roster
System as Interpreted and Applied were Illegal
The General Counsel contends that under certain Board
cases that supervisors are equally protected even though
not specifically so under the Act because of the impact on
rank-and-file employees. Assuming arguendo that the
roster system as applied and interpreted were invalid, the
General Counsel argues that even if they were supervisors
the position taken against Colman and Lapenieks was
improper. The General Counsel says that this action was
brought to the attention of the members because a number
of the members who were admittedly employees were on
the Executive Board when the cases involving Lapenieks
and Colman were discussed, and that the charges were also
read to members at regular meetings.
General Counsel also contends that the charges relating
to Lapenieks and Colman were set forth in articles in
"Daily Variety," a publication distributed principally in
the motion picture industry in Los Angeles County. It was
stipulated that in the 12 months preceding September 29,
1970, the average paid circulation of "Daily Variety" was
13,986 of which 9,351 copies were mailed and 4,635 were
delivered to customers or dealers or news vendors in some
manner other than by mail. It was further stipulated that
on February 4, 1971, 2,916 copies were mailed to
subscribers in the County of Los Angeles, (outside the
city), 2,730 were mailed to subscribers in the City of Los
Angeles, and 1,996 were mailed to subscribers outside of
the County of Los Angeles for a total of 7,642-so that
approximately two-thirds are mailed in Los Angeles
County and one-third mailed outside Los Angeles County.
It was further stipulated that there was no less than 80
percent of the above circulation in 1967, 1968, 1969, and
1970.45 Assuming these in fact were read by employees,
which is a matter of inference, there would still be the
question of how did such coerce employee under the Act?
First, it would appear that there would have to be found as
a necessary inference, or assumption that the same
treatment would apply to rank-and-file employees as to
supervisors. Second, it would appear that the truth or
falsity of the published allegations would be a material
element or consideration. The publication of allegations
does not establish the truth of facts. Further, the publica-
tion would seem to have an equally coercive impact
whether true or not. Obviously the mere filing of charges
and the publication thereof could not make the Union
guilty of violating the Act. The same is true as to the
charges being read to members. Additionally, charges
44 Subsequently, Colman was employed by Reagan Associates , evidently 45 The parties could not agree on whether or not the bulk of the delivered
owned by MPO Videotronics. Reagan had a contract with IATSE and papers were delivered in the Hollywood area, although counsel for
Colman did acquire the necessary time to be placed on and was placed on Respondent conceded they "all go to Los Angeles County."
the physical roster and became a member of Respondent.
IATSE, LOCAL 659
relating to supervisors do not necessarily affect rank-and-
file employees.
The General Counsel predicates her argument essentially
on two Board decisions. Principally the argument appears
to be there is one roster system and that the assumption
can be made that its application to supervisors would
necessarily have impact on rank-and-file employees. The
cases cited by the General Counsel are A. O. Smith
Corporation, Granite City Plant, 132 NLRB 339 and 393-
394 and Reinforced Steel Workers Local 426 (K. G. Marx,
Inc.), 164 NLRB 903, which will be analyzed and
considered post.
First, the initial'cases finding discriminatory action by an
employer with respect to supervisors were predicated upon
the relationship of supervisors to rank-and-file employees.
Where a supervisor is disciplined for refusing to commit
unfair labor practices or take action that would improperly
affect the rights of or coerce employees under the Act or
where action is taken against a supervisor for acting as a
buffer for employees against improper conduct under the
Act, a violation may be found. See for instance Vail Mfg.,
158 F.2d 664 (C.A. 7), where the supervisor refused to be
classified as an operator (to assist in defeating organiza-
tion), or Inter-City Advertising, 89 NLRB 1103, where
supervisors refused to aid in a campaign against the Union.
In the latter case, the Board said-
As the Trial Examiner found, the reason for Peeler's
discharge was his failure to report to the Respondent
the union activities of the nonsupervisory employees
under his direction. We believe it reasonable to infer
that the Respondent's reason for requiring such reports
was to assist it in its campaign against the Union. As
we held, with judicial approval, in the Vail case, the
discharge of supervisors for refusing to aid in such a
campaign unlawfully interferes with, restrains, and
coerces the nonsupervisory employees involved. Al-
though the Vail case was decided before the amend-
ment of the Act, in our opinion the amendments have
made no change in the law in this respect. [Footnotes
omitted.]
Similarly as to threats or violence to supervisors in presence
of employees, in Smith Cabinet, 81 NLRB 886 at 888, the
Board said:
The Respondents further argue that the Board is not
warranted in finding that the acts directed against the
Company's supervisors violated Section 8(b)(1)(A)
because that Section protects "employees" only. How-
ever, we note with respect to the incidents involving
Superintendent Simpson and Foreman McKinney,
adverted to above, that non-striking employees witnessed
them, or were in the immediate vicinity at the time of their
occurrence. In these circumstances, we find, like the
Trial Examiner, that these employees might have
reasonably regarded these incidents as a reliable indica-
tion of what would befall them if they sought to work
during the strike The coercive effect of such conduct on
"employees" within the meaning of the Act is therefore
clear. And inasmuch as the illegality of coercive
activity directed against supervisors is found to depend
upon its commission in the presence of non-striking
employees or under such circumstances as to insure that
1215
these employees would hear of it, we shall reject the Trial
Examiner 's findings with respect to the threats to company
officials which were not made in such a context.
Accordingly , we do not find, as did the Trial Examiner,
that Section 8(b)(l)(A) was violated by Burger's
warnings to the Company 's president and vice presi-
dent that there would be "trouble" if they 'attempted to
bring cars into the plant , and that the windshields of
such cars would be smashed . [ Footnotes omitted.]
[Emphasis supplied.]
See also N. L. R. B. v. International Woodworkers AFL-CIO
(W. T. Smith Lumber Co), 243 F.2d 745 (C.A. 5). A. O.
Smith and Company, cited by the General Counsel , involves
an action against a supervisor who was a leader in a
dissident movement and had sought to protect employees
and it was evident employees were aware of the situation.
The Trial Examiner stated in part : ( 132 NLRB 393-394)
The foregoing findings so clearly show that Ran-
dolph was demoted by the Company because it was so
willed by Herzing , and hence the Boilmakers, that
elaborate discussion is needless . The proof is over-
whelming that Herzing brooked no interference with his
autocratic reign over the Company's employees, and that
he swiftly and unremittingly retaliated with physical
assault, threats of economic reprisal, and pressures on the
Company against any person, employee, or management
representative who deigned to interfere with him . Herzing
had marked Randolph for extinction because he regarded
him as a leader in the Carpenters ' movement and in the
dissident group He resented Randolph 's protection of
employees from molestation by himself and his lieuten-
ant, Rocky Mayes, and had openly expressed his
intention to get him out of the plant . As will be shown,
Randolph 's demotion in November was a first step
leading ultimately to his layoff less than 2 months later.
As for the Company's motives for demoting Randolph,
it is not necessary to go beyond consideration of Harp's
admission in his remarks explaining the demotion to
Randolph as a surrender by the Company to pressure from
the Boilmakers . This was but another example of the
Company's abject capitulation to Herzing 's demands at
the expense of employee rights, all in the belief that by
bolstering Herzing 's power in the Boilmakers the
Company would gain stability in its plant , and that
failure to placate Herzing by appeasing his demands
for reprisal against his opponents would lead to
resumption of former disorders. In the prevailing
atmosphere of the Company 's plant it was inevitable that
the employees should regard Randolph 's demotion as
symbolic of what would happen to him if they, in the
exercise of their statutory rights, were to oppose Herzing
and his ruling group . If Herzing was powerful enough to
require the Company to punish a foreman who dared
stand up to him, what chance would a plain rank-and-
file employee have in a contest with him? The answer
to employees who realized the obvious meaning of
Randolph 's demotion was that they had no chance. The
clear message to them was that protection of their jobs
required abandonment of all union activities which would
incur Herzing's displeasure. The threat to their job
security if they opposed him as demonstrated by his
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wield of power over the Company to cause Randolph's
demotion, was as plain as if the employees were told
directly by Herzing that they like Randolph would be
similarly punished for resisting him. Union threats to the
job security of employees, whether by conduct or words
spoken directly to them, which are reasonably calculated
to coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act to continue to
abandon their allegiance to the Union, are violative of
Section 8(b)(1)(A) of the Act. [Footnote omitted.]
[Emphasis supplied.]
The foregoing illustrates a case of union pressure against
and demotion of a foreman for his part in a dissident
movement and for his protecting employees against union
pressure which was found to be obvious to employees by
the Trial Examiner.
The Reinforced Steel Workers, supra, in my judgment is
not precedent since the Trial Examiner's decision was
adopted by the Board because no exceptions were filed. In
addition, the factual situation is not comparable to that
herein. The Trial Examiner stated:
The employees, both those who were and those who
were not members of Local 426, were thus given ample
evidence that Respondent's power was such that they could
cause a reluctant employer to demote even a supervisor. If
the Union was both willing and able to force Marks,
who had no contract with Local 426, to hire only
members as supervisors, the employees could have little
doubt that the Union could and probably would make sure
that union membership or a union dobie or permit was a
condition precedent to obtaining and retaining a job as a
rank-and-file employee.
Furthermore, it is abundantly clear that Respon-
dents first sought to force Marks to get rid of Smith by
refusing to allow members of Local 426 to work on the
project under Smith and it was only when this tactic failed
that Respondents made their direct demands which they
enforced by means of a picket line which closed down the
entire project. In other words, Respondents' campaign
against Smith included direct pressure upon employees,
i.e. those members of Local 426 who were prohibited from
working for Smith and who clearly were unwilling to work
under Smith lest Respondents deprive them, in turn, of
jobs on other projects either by seeing to it that they were
not hired by union foremen or by refusing to refer them
to jobs when employers asked for men.
Thus, when viewed as a whole, Respondents' conduct
put employees on notice that Local 426 and Regis
O'Brien were determined to remove from the job every
man, be he a supervisor or a rank-and-file employee, who
was not a member of Local 426 or did not have a dobie or
a permit issued by Respondents. To state it another way,
Respondents' demands with respect to Smith and with
respect to the laborers were so interrelated that the
employees would be unable to distinguish between them
and would view them as a single act the purpose of which
was to reserve all rested jobs for union members or for
men who had the approval of the Union and/or Business
Agent O'Brien . Indeed, Respondents' conduct made it
clear to members of Local 426 that if they wanted to be
hired as foremen, they had to be members of Local 426 or
acceptable to Business Agent O'Brien while employees
and that Local 426 and Regis O'Brien reward rank-
and-file employees who are,"good" union members by
having them appointed foremen. [Emphasis supplied.]
It is evident that the Trial Examiner found the facts to
show an interrelationship of pressures on a foreman and
employees and that employees were cognizant thereof.
Whether or not the Trial Examiner 's ultimate conclusion is
accepted, the case is clearly distinguishable.
It is clear that , whether or not the circulation of Variety
and the reading of charges should or can properly be
accorded any significance, the impact on other employees
and the context situations in the cases cited above were
manifestly different from that herein. The witnessing or
presence in the immediate vicinity of physical acts of
violence against employees in the Smith case is not this
case . Neither is it comparable to the involvement,
interrelationship , and enmeshing of pressures and interests
evidently known to all in the A O. Smith Corporation and
the Reinforced Steelworkers Local cases.
However, with respect to presumptions or conclusions as
to coercion or violation which may be drawn from
situations , the Supreme Court has passed on such in hiring
situations in a number of cases. In the Local 357 Teamsters
case, supra, 365 U.S. 667, the Court said there could be no
per se presumption of coercion or violation from a hiring
hall and that the Board could not adopt specific standards.
A second Supreme Court case is N L.R.B. v. News
Syndicate, 365 U.S. 695. The issue therein was whether
under a contract which required that foremen be union
members and where the foremen were to do all the hiring,
these provisions would necessarily amount to a violation of
the Act. The Supreme Court at page 699 stated:
We also believe the Court of Appeals was right in
concluding that the contract on its face is not unlawful
even though the foremen-who are union members
--lo the hiring. In the first place, the contract (unlike
the General Laws) does not require journeymen and
apprentices to be union members. In the second place,
the provisions of the contract which we have set forth
make the foremen "solely the employers' agents," as
the Court of Appeals concluded. 279 F.2d at 330.
Finally as we said in Teamsters Local 357 v. Labor
Board, decided this day, ante, p. 667, we will not
assume that unions and employers will violate the
federal law , favoring discrimination in favor of union
members against the clear command of this Act of
Congress. As stated by the Court of Appeals. "In the
absence of provisions calling explicitly for illegal
conduct , the contract cannot be held illegal because it
failed affirmatively to disclaim all illegal objectives."
279 F.2d at 330. [Footnote omitted.]
It would appear, if under the circumstances in the News
Syndicate case there is no per se coercion of the persons
employed either with respect to union membership or
union representation, that the fact of discrimination in
hiring of supervisors , even assuming such were brought to
the attention of employees, would not per se result in a
finding of coercion of employees. In the News Syndicate
case, it appears evident that the employees would know that
the foremen were union members and also that they did the
IATSE, LOCAL 659 1217
hiring since they in fact hired them. Yet no finding of
coercion therefrom could be made . Accordingly, I con-
clude and find that the action directed toward Colman and
Lapenieks as supervisors would not constitute a violation
under the circumstances , even if the roster system (as
interpreted and applied) were Illegal 46 The fact that there
may be an arguable coercive effect on employees is
obviously not sufficient under the News Syndicate decision.
I accordingly find no violation of the Act as to Lapenieks
or Colman under any allegation of the complaint herein.
The Dambacher Allegations
This brings us to the Dambacher allegations which were
referred to in detail , supra. These , under the pleadings,
were not set forth as evidence of a separate violation but as
evidence of motivation . The complaint alleged that "On or
about June 14 , 1966 Respondent through Nave caused or
attempted to cause Wilding to discharge Emmett N.
Dambacher, Jr., because he was not a member of
Respondent ." The time of the alleged incident is clearly
not within the 10(b) period for the purpose of any asserted
violation but may be considered as "background" in aid of
understanding and possibly as bearing on motivation.
However, as set forth supra in footnote 31, the evidence in
support of General Counsel 's contention that Respondent
caused Dambacher to be terminated by Wilding , Inc., is
predicated on hearsay testimony that Dambacher was told
by Jim Sommers , production manager (of Wilding), that he
was being let go because Doyle Nave had told Sommers he
could not take Dambacher on location and he would have
to be replaced . According to Dambacher , Nave gave
Sommers a list of people including Serge Haignere and
Ron McMannus and Haignere replaced him . First, I will
not make any finding of fact based on Sommer 's asserted
statement to Dambacher as to what Nave allegedly told
Sommers. Second , such does not appear to relate to union
"membership ." Further, as previously set forth , it appeared
from the Union 's record and information that both
McMannus and Haignere at the time , although not on the
physical roster, had met the requirements for roster status
while Dambacher had not . Accordingly , I find and
conclude that the aforesaid allegation as to Dambacher has
not been established.
Conclusions
I have previously found and concluded that the roster
system as set forth in the contract and as interpreted and
applied insofar as the Respondent is concerned was not
illegal and that it was not illegally applied to Colman,
Lapenieks , or Dambacher , even assuming Colman and
Lapenieks were employees . Further , I have found that
Lapenieks and Colman were supervisors although I reserve
any finding as to whether or not Colman was an
independent contractor . As supervisors I have concluded
and found that even if the roster system were illegal or
illegally applied that any action taken toward Lapenieks
and Colman did not constitute a violation of the Act. I
have also concluded and found that the Tn -City Agree-
ment , insofar as it was involved and has been applied, was
neither illegal nor illegally applied . Finally, I conclude and
find that the General Counsel has not proven under the
complaint herein any acts in violation of the Act.
Accordingly, I shall recommend that the complaint herein
be dismissed in its entirety.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the
following conclusions of law:
1. The employers referred to herein are employers
engaged in and affecting commerce within the meaning of
the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8 (b)(1)(A) of the
Act as alleged.
[Recommended Order omitted from publication.]
46 In view of this conclusion , it is unnecessary to consider further the
extent of knowledge that could be inferred from distribution of "Daily
Variety" nor the effect of the truth or nontruth of the matters published nor
whether such could in any case constitute a predicate for finding a violation